Module 3:
Relation between International Law and Municipal Law
Practice of States: United Kingdom United States of America and India.
When International Law is accepted and applied in the state then it is having its application in the state
1. British practice (UK):
For application of international law in Britain, distinction is made between the customary rules of
international law and the rules laid down by the treaties.
A) British practice in regard to customary rules of international law.
In Britain, customary rules of international law are treated as a part of British laws. British courts treat
customary rules of international law as a part of their own law subject however to the following
condition:
i) Rules of international law should not be inconsistent with the British
statue.
And
ii) If the highest court once determines the scope of customary rule of
international law, then all the courts in Britain are bound to it.
B) British practice as to treaties:
In Britain the practice regarding the rules laid down by treaties is different from the practice in regard to
the customary rule of international law. In regard to treaties, the British practice is based on the
constitutional principles governing the relationship between executive or crown and Parliament. In
regard to treaties, the matters regarding to negotiations, signatures etc are within the prerogative
powers of the crown. In Britain it is necessary that some type of treaties should receive the consent of
parliament. Either the Parliament accords its consent or adopt it in State Law through the help of a
statue.
2) American practice (USA)
In America also, the practice regarding customary rules of international law and the rules laid down by
Treaty are different.
A) American practice regarding the customary rules of international law:
American practice regarding the customary rules of international law is more or less as same as the
British practice. In America also customary rules of international law are treated as part of American
laws.
B) American practices regarding rules laid down by the treaties:
American practice regarding the rules laid down by the treaties is different from British practice. In case
of international treaties, American practice is not based on the constitutional rules governing the
relationship of the executive and congnen. In America Everything depends on the provision of
constitution. Article 6 of the American constitution provides that, all laws made in pursuance of and the
international treaties entered into under the authorities of the United States shall be the supreme law of
the land. Thus International treatise have been place in the same category as the State law in America.
If there is a conflict between International treaty and a state law which even is later, in date shall
prevail.
If there is a conflict between American Constitution and International treaty, the Constitution will
prevail.
3) Indian Practice:
Before the adoption of Indian Constitution, the Indian practice in respect to relation of International Law
to internal law as similar to the British practice. After the adoption of the Constitution of India,
Constitution of India had the most importance.
Article 51 of constitution of India, provides as follows “ The state shall
i) Promote international peace and security
ii) Maintain just and honourable relation between nations.
iii) Foster respect for international law and Treaty obligations.
In India also the customary rules of international law are parts of the Municipal Law provided that
they are not inconsistent with any legislature enactment or the provision of the Constitution of India. As
regards the Treaty rules also, international law can become part of Municipal Law of India if it has been
specifically Incorporated.
It can be concluded that,
1) customary rules of international law are treated to be part of domestic laws in a large number of
states and in case they do not conflict with the existing Municipal Law, there is no need of their specific
adoption.
2) only in a few States customary rules of international law, about specific adoption and applied by
municipal courts even in case of conflict with Municipal statue or judge made law.
3) As regards practice relating to the application of treaties within the municipal sphere practice of state
is not uniform.
4) In large number of states, municipal courts give priority to the application of municiy law,
irrespective of the applicability of rules of international law and the question of any breach of
international law is left to be settled at the domestic level.