EULOGIZING PROF. E.Y BENNEH: DOES IT MATTER NOW WHAT GROTIUS SAID? By Frederick Agaaya Adongo

That Prof. Emmanuel Yaw Benneh was a great teacher of the law is an underestimation of his prowess. His mastery of his subject area is an enviable feat that every teacher would want to attain. Within the first fifteen minutes of every lecture, Prof. Benneh would usually run through the previous lecture in such a fashion that everything he said the previous week became fresh again in our minds. He taught with so much zeal and very seldom, if ever, would he come even a minute late for any lecture. He would come to the lecture hall without a book or paper but would reproduce verbatim provisions of many international conventions, excerpts from judgments of local and international courts, opinions expressed by authors in books and journal articles, among so many other sources. He made everything seem as though he were the inventor of international law by his style of teaching – weaving lines from theological, legal and even non-legal masterpieces. In a sense, international law was the blood that ran through his veins. He was simply amazing; a great legal powerhouse!

Prof. Benneh was a fearless man in his zeal for intellectual development. He was not afraid to challenge Prof. Clive Parry (late professor of international law at the University of Cambridge), under whose feet Benneh himself had sat while he was climbing the ivory towers of learning, and Lord Dacre, who in their examination of the history of international law disputed that Africa had any history and civilization. Operating with this assumption, they concluded that no history of international law could be examined in an African context. Prof. Benneh boldly pointed out to them that prior to Western colonial imperialism in Africa, there were in existence several African Empires such as the Mali Empire, the Ghana Empire, the Songhai Empire, the Benin Empire, among many others. Not just were these in existence, but they carried on some form of inter-Empire trade, which was governed by certain rules. And the fact that these rules remained undocumented is of little significance as we have international customary law, discernible from state conduct, coupled with the requisite opinion juris ac sive necessitatis (the belief by a state that its conduct is based on some legal obligation).

More interestingly, Prof. Benneh had a characteristic textually simple but jurisprudentially complex and vexatious style of questioning students in examinations. The Public International Law past questions are replete with such questions. The most prominently underscored being the following: “Is international law really law?”; “Does it matter now what Grotius said?”; “Do protests and acquiescence have any roles to play in the development of international customary law?”; “Is article 2(4) of the United Nations Charter dead? If yes, who or what killed it?”; “Does the just war concept survive the United Nations Charter?”, “Are there sources of international law?”, “How far may a state alienate territory?” These and so many others were the jurisprudentially deep, nagging, vexatious and haunting questions that every student of Public International Law under the tutelage of Prof. Benneh had to find answers to.

Being a lover of international law, I had high hopes that one day, under the auspices of Prof. Benneh, I would, with an unremitting effort, find answers to some of these questions. As such, a cold shiver ran down my spine when the news of Benneh’s demise reached my ears! As it is now obvious, Prof. Benneh is no more alive to help me find answers to these questions. And so with listless resignation in this tribute, I seek to find, albeit cursorily, answers to one of such great jurisprudential questions of the late downing professor: “Does it matter now what Grotius said?”

Hugo Grotius, who is described by Malcolm Shaw as a “scholar of tremendous learning”, is the widely acclaimed father of modern international law. His writings had so much influence on the law of nations, thereby necessitating that title. In assenting to this view herein, I am not oblivious to the numerous controversies which exist as regards that accolade enjoyed by Grotius. For instance, the late Prof. Benneh, whom we affectionately called “Grotius Himself” because of his mastery of international law, expressed the opinion that the accolade enjoyed by Grotius is ill-conceived because his commentaries were merely Eurocentric. According to him, it is rather Franciscus de Vittoria, a Dominican Friar and professor at the University of Salamanca, who should be accorded that accolade, because he proposed a general theory of international law which was more pervasive and ‘international’ in its outlook.

But operating on the assumption that Grotius is the father of modern international law, the question whether it matters now what Grotius said obviously requires of us to examine the role played by Grotius in the development of international law, and particularly whether his contributions are of any contemporary relevance. But then, inherent in this question are several questions crying out for resolution about the roles played by publicists generally in the development of the subject. As such, our task will not be complete without mention being made also of the contributions of publicists, not just Grotius, in the development of international law as well as their importance in contemporary international law.

Moving on, an examination of the history of international is basically having recourse to the writings of the classical scholars of the various nations. Their writings essentially birthed what we refer to now as international law. Accordingly, it is an undeniable fact, as Prof. Benneh identified, that the history of international law is a chronological study, a “roll call”, of the classical writers of the various nations, albeit with a Eurocentric flavor. So we can say, with no iota of incredulity, that but for the intellectual ink that has been spilled over the centuries by publicists, international law could never have come into existence.

In his book Sources and Evidences of International Law, Prof. Clive Parry perfectly underscored the role played by these publicists in the following apposite and groundbreaking terms: “Upon a long view, there would seem to be no legal order wherein the publicist – a peculiar term – has played a greater part than international law. Grotius is the father of the law of nations. And we have noticed already how, at the beginning of the last century, all states seemed to rely heavily on Vattel. Indeed both the books and opinions of the nineteenth century seem often to resemble catalogues of the praises of famous men. ‘Hear also what Hall sayeth. Hear the comfortable words of Oppenheim’ is an incantation which persists even into this century.”

Grotius’ work which makes him outstanding in the international scholastic tradition is his book titled De Jure Belli ac Pacis Libri Tres (Three Books on the Law of War and Peace), first published in 1625. In this great legal masterpiece, the astute scholar sought to construct a general theory of law that would restrain and regulate wars between nations. Systematizing international law from the point of view of state practice, Grotius set out in extenso international law as it applied in the relations of states in both times of peace and of war.

In his Prolegomena to this erudite masterpiece, Passage 28 thereof, Grotius makes an argument which seeks to expose the ugliness and inhumanity of war.  He posited thus: “Fully convinced, by the considerations which I have advanced, that there is a common law among nations, which is valid alike for war and in war, I have had many weighty reasons for undertaking to write upon the subject. Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes. Confronted by such utter ruthlessness, many men who are the very farthest from being bad men have come to the point of forbidding the use of arms to the Christian, whose rule of conduct above everything else compromises the duty of loving all men.”

Aside Grotius, many other publicists made very substantial contributions to the development of international law. For instance, Francisus de Vittoria is celebrated for having birthed, by his scholarship, the principle of self-determination. This is as a result of his De Indis et de Iure Belli Reflectiones (On the Indians and Reflections on the Law of War). In this tractate, De Vittoria applied the natural law discourse of St. Thomas Aquinas in his Summa Theologica (Summary of Theology) and postulated that “native people have legal rights as free and rational people”. As such, “the Pope’s grant of title in Americas was baseless and could not dispossess the Indians of their inherent rights as human beings.” According to him the only circumstance that may warrant the conquest and colonization of the Americas by Christian nations was “transgressions of the universally binding norms of the law of nations by Indians”.

This principle of self-determination that Vittoria ‘gave birth to’ has gained worldwide recognition. It is by no means doubtful that 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.” Again, at least a cursory mention is made of the principle in the United Nations Charter, the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, the 1970 Declaration on Principles of International Law Concerning Friendly Relations, the African Charter on Human and Peoples Rights, the International Covenant of Economic, Social and Civil Rights, among other international agreements.

The principle of self-determination was solidified even further by the International Court of Justice in the East Timor case, wherein the court affirmed that “[t]he principle of self-determination has been recognized by the United Nations Charter and in the jurisprudence of the Court … [and] is one of the essential principles of contemporary international law.” Self-determination was given much credence by Judge Dillard in the Advisory Opinion of the International Court of Justice in the Western Sahara case ICJ GL No 61, [1975] ICJ Rep 12, ICGJ (ICJ 1975) wherein he stated thus: “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.”

Among the list of scholars on whose works international law rests are Balthazar Ayala, Francisco Suarez, Alberico Gentili, Richard Zouch, Samuel von Pufendorf, Christian Wolff, Emeric Vatell and most recent ones such as Clive Parry, Eli Lauterpatcht, Ian Brownlie, Paul Reuter and Robert Jennings. It is not intended here to recount the works of each of these scholars.

But whatever the case may be, it is clear that the writings of these scholars are as relevant now as they were at the time they were written. Hardly would any examination of international law be made without mention being made of the writings of these excellent publicists. Their writings are relied on by courts and tribunals in making pronouncements on issues that border on international law concepts that have been expounded by these expert writers.

Brownlie’s Principles of Public International Law takes affirmative cognizance of this fact when it posits thus: “Whatever the grounds for caution, the opinions of publicists enjoy wide use. Arbitral tribunals and national courts make sometimes copious reference to jurists’ writings. National courts are generally unfamiliar with State practice and are ready to rely on secondary sources as a substitute. Ostensibly the International Court might seem to make little or no use of jurists’ writings. However this is because of the process of collective drafting of judgments, and the need to avoid an invidious selection of citations. The fact that the Court makes use of writers’ work is evidenced by dissenting and separate opinions, in which the ‘workings’ are set out in more detail, and which reflect the Court’s actual methods. There are many references to writers in pleadings before the Court.”

The United States Supreme Court case of Paquete Habana bears witness to this truth. Therein, the court indicated that, “where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.” The court herein essentially underscored the importance of academic writings in ascertaining what international law really is.

Therefore, the relevance of the writings of the publicists, including Grotius, in contemporary international law cannot be underestimated. Indeed, the International Court of Justice is enjoined by Article 38 of the Statute of the International Court of Justice to apply as well writings of the most highly qualified publicists of the various nations in the resolution of such disputes as are submitted to it. This necessarily includes writers of old, such as Grotius, for it is based on their works that publicists of recent years extrapolate. Very seldom, if ever, would one find a new proposition of law emanating from the writings of the recent crop of publicists. Regard is often had to the fine works of the classical scholars of the law of nations by many recent writers. Accordingly, Prof. Benneh makes an argument for credence to be given to the framers of the Statute of the International Court of Justice for their “painstaking ingenuity” by including writings of the most highly qualified publicists of the various nations as a source of international law, even if assigned some subsidiary value.

The role of publicists has also been elevated by the establishment of the International Law Commission, which is a commission of eminent publicists selected from different parts of the world. The draft articles of the Commission have formed the basis of many international treaties, including the famous Vienna Convention on the Law of Treaties and the Vienna Convention on Diplomatic Relations. So it is obvious that contemporary international law on the one hand, and the writings of publicists on the other, are inseparable bedfellows.

It has been argued by many that following the establishment of several international courts and tribunals, it is next to irrelevant to have recourse to the teachings of publicists. The underlying assumption is that these courts and tribunals necessarily come with bulk literature and jurisprudence such that writings of publicists have been rendered almost nugatory. But those who hold such views as this have too often forgotten that no real examination of any international law topic can be made without considering its origins, which will mostly be seen in the writings of publicists. To discard the writings of publicists altogether, especially those who somewhat gave birth to the principles constituting international law, will be the logical equivalent of talking about the Grundnorm without making mention of Hans Kelsen; or natural law without St. Thomas Aquinas and St. Augustine of Hippo; or positivism without John Austin and H.L.A Hart.

Again, the magnum opus of Grotius referred to supra is predicated on peace. Peace is the very foundation upon which is erected the United Nations system as can be gleaned from Article 1 of the United Nations Charter. As such, the words of Grotius never lose their significance through the effluxion of time.

The inescapable conclusion, therefore, is that it does matter now what Grotius said. Not only does it matter now what Grotius said, but it equally matters now what the great scholars of the law of nations said even centuries ago.

Dear Prof. Yaw Benneh, I have no doubt whatsoever in my mind that very soon, the question will read, “Does it matter now what Benneh said?” as opposed to whether it matters now what Grotius said. In this connection, I make haste to borrow the words of Prof. Clive Parry and postulate thus: “‘Hear also what Benneh sayeth’ is an incantation which will persist into several centuries.” No proper account of the history of international law can be made in years to come without due regard being given to your industry and scholarship. We shall meet again in eternal glory; but until then, REST WELL.

PAA YIRE SUNGA!!!