Relationship between International law and Municipal Law

Introduction: Municipal law is the technical name given by international lawyers to the
national or internal law of a state. The question of the relationship between international law
and municipal law can give rise to many practical problems, especially if there is a conflict
between the two. Which rule prevails in the case of conflict? How do rules of international
law take effect in the internal law of states?
Following topics are covered hereunder:
- Dualist and the Monist approach, Harmonisation approach
- Specific Adoption and Transformation theory and Delegation or Incorporation Theory
- The attitude of International Law to Municipal Law
- The attitude of Municipal Law to International Law
UK, US, India (with respect to treaties and Customary International Law)

1. Dualist, Monist , Harmonisation approach

There are two basic theories, with a number of variations in the literature, on the relationship
between international and domestic law. The first doctrine is called the dualist (or pluralist)
view and the second is monist approach
The Dualist approach (TriepelAnzilottiKelsen):
The dualist doctrine is strongly coloured by an adherence to positivism and an emphasis on
the theory of sovereignty
It and assumes that international law and municipal law are two separate legal systems which
exist independently of each other. The central question then is whether one system is superior
to the other.
The most radical version of the monist approach was formulated by Kelsen. In his view, the
ultimate source of the validity of all law derived from a basic rule(Grundnorm) of
international law. Kelsens theory led to the conclusion that all rules of international law were
supreme over municipal law, that a municipal law inconsistent with international law was
automatically null and void and that rules of international law were directly applicable in the
domestic sphere of states.
According to Triepel there are two fundamental distinctions between the two systems:
Subjects of state law are individuals, while the subjects of International law are states
Their judicial origin is distinct. While the source state law is will of the state, source
of International law common will of the state

According to Anzilotti, state law is governed by the fundamental principle that state law
should be obeyed. However, International law is conditioned by the principle
PactaSuntServanda i.e. agreements between states are to be respected.According to him, the
two systems are so distinct that no conflict between them is possible. There may be
inferences from one to the other.
The Monist approach (Lauterpacht):
The second doctrine, called the monist view, is more inclined to follow natural law thinking
and liberal ideas of a world society. It is based on the scientific analysis of the internal
structure of legal systems. It has a unitary perception of the lawand understands both
international and municipal law as forming part of one and the same legal order. It believes
that all laws are a single unity composed of binding legal rules, whether those rules are
obligatory on states, on individuals, or on entities other than states. Once International Law is
recognised as law, it is impossible to deny that the two systems constitute part of that unity
corresponding to the unity of legal science.
In reality, the opposing schools of dualism and monism did not adequately reflect actual state
practice and were thus forced to modify their original positions in many respects, bringing
them closer to each other, without, however, producing a conclusive answer on the true
relationship between international law and municipal law.
It is also notable that the controversy was predominantly conducted among authors from civil
law countries. Authors with a common law background tended to pay lesser attention to these
theoretical issues and preferred a more empirical approach seeking practical solutions in a
given case.
The Harmonisation approach:
According to Fitzmaurice, since only International Law applies on the inter governmental
plane and national law is supreme in the national domain, the two systems cannot collide.
This means that there is no common field of operation between these laws.
Lecturing at the Hague Academy of International Law in 1957, Fitzmaurice said that:
the entire monist-dualist controversy is unreal, artificial and strictly beside the point, because
it assumes something that has to exist for there to be any controversy at alland which in
fact does not existnamely a common field in which the two legal orders under discussion
both simultaneously have their spheres of activity.
However, there may be situations when there is conflict of obligation, that is, state within its
own domestic sphere may not act in accordance with its obligations laid down in
International Law. This conflict of obligation may not, in practical be resolved by giving
ascendency to one over the other. Rather the approach should be harmonise wherein possible,
the two competing legal prescriptions so as to avoid conflict of obligation. This can be done
by national laws and courts. (for example- Infusion of International legal standards couched

in general terms, into national legal orders by processes of adaptation to local laws,
institutions and cultures.)

2. Transformation and Specific Adoption theory, delegation

theory
Transformation and Specific Adoption theory (positivists) In line with the dualist
approach, this theory says that the rules of International Law cannot apply directly within
municipal law without specific adoption because municipal law is in itself a complete system.
International Law cannot intervene without constitutional process to work in municipal
sphere. The transformation is required for international law because treaties are promises and
municipal statutes are of the nature of commands. It follows from this basic difference that a
transformation from one type to the other is formally and substantially indispensable.
Delegation Theory: In answer o transformation theory, the critics have put forward the
Delegation theory. There is delegated to each state constitution y constitutional rules of
International law, the right to determine when the provisions of a treaty or convention are to
come into force and the manner in which they are to be embodied in state law. The
procedures and methods to be adopted for this purpose by the state are a continuation of the
process begun with the conclusion of the treaty or convention.
There is no fresh transformation no fresh creation of rules or municipal law, but merely a
prolongation of one single act of creation. The constitutional requirements of state law are
merely part of a unitary mechanism for the creation of law.

3. Municipal Law before International Tribunals

Municipal courts pay prime regard to municipal law in the event of a conflict with
International Law, but that in no way affects the obligations of the state concerned to perform
its international obligations. This implies that before an international tribunal, a respondent
state cannot plead that:
- its municipal law (not even its constitution) contains rules which conflict with international
law (Polish National In Danzig case)
- absence of any legislative provision or of a rule of internal law as a defence to a charge that
it has broken International law ( Alabama Claims Tribunal and La Grande case)
- that its domestic law exonerated it form performing obligations imposed by an international
treaty unless in giving its consent to the treaty, a fundamental rule of municipal law
concerning constitutional competence to conclude the treaty, concerned was broken and this
breach of municipal constitutional law was manifest.
Thus article 13 of the Draft Declarations on Rights and Duties of states lays down: Every
state has the duty to carry out in good faith its obligations arising from treaties and other

sources of International Law and it may not invoke provisions in its constitution or its laws as
an excuse for failure to perform this duty.
Further, Article 27 and 46 of Vienna Convention on Law of treaties
Article 27- A party may not invoke the provisions of its internal law as justification for its
failure to perform a treaty. This rule is without prejudice to Article 46.
Article 46- A state cannot invoke the violation of a provision of its internal law as a ground
invalidate its consent to a treaty unless that violation was manifest and concerned a rule of its
internal law of fundamental importance.
Finally Article 25 of the UN Charter
It gives binding force to decision of the SC, notwithstanding municipal law to the contrary
How municipal law becomes relevant before International tribunals:
a) Tribunals come across cases which are either related to interpretation of municipal
law or based totally on municipal law (Brazilian Loan case and Serbian Loan case,
Nottebohm case, Fisheries case, Guardianship of Infants case)
b) International tribunals also quite often resort to municipal laws to ascertain whether a
customary rule of International Law has evolved by concerned or cumulative state
practice. (S.S. Lotus case)
c) Many treaties contain provisions referring directly to internal law or employing
concepts which by implications are to be understood in the context of a particular
national law. Many treaties refer to nationals of the contracting parties and the
presumption is that the term connotes persons having that status under the internal law
of one of the parties. Similarly claims settlements involve references to legal interests
of individuals and corporations existing within the cadre of a given national law.
d) Municipal law may be evidence of conduct attributable to the state concerned which
creates International Responsibility. Thus a decision of a court or a legislative
measure may constitute evidence of a breach of a treaty or a rule of customary
International Law. Eg.: Anglo Iranian oil co case
e) Judicial notice does not apply to matters of municipal law. The tribunal will require
proof of municipal law and will hear evidence of it (Movrammatis Jerusalem
Concession Case PCIJ)
f) Interpretation of their own laws by national courts is binding in an international
tribunal (eg.: Serbian Loan case)
g) International tribunals cannot declare internal invalidity of rules of national law since
the international legal order must respect the reserved domain of domestic
jurisdiction. (Interpretation of statute of Memel PCIJ)

Cases: Serbian Loan Case

Facts: Loans were given by France, issued in Franc, to the kingdom of Serbs, Croats and
Slovenes. All these loans were issued in France either in their entirety or for the greater part. Their
yield was credited to Serbia in French paper francs and Serbia, in her turn, effected the service of the
loans in the same currency both before the war and during the war as well as subsequently, including
the first period of the depreciation of the franc, without any apparent manifestation of dissatisfaction
on this ground on the part of the bondholders. however, the bonds of these loans and the documents
relating thereto also contained references to gold or to the gold franc. The bondholders, in view of the
increasing depreciation of the French franc, were induced to claim payment of their coupons and
redemption of their bonds on a gold basis. When the French Government attention was drawn to the
situation, she took up the case of the bondholders and entered into diplomatic negotiations with the
Serb-Croat- Slovene Government. The negotiations did not lead to the settlement of the dispute
between the two Governments, and the matter was referred to the PCIJ.
Issue: whether, as held by the French Government, the French bondholders were justified in their
claim to obtain payment in gold currency, or whether the Serbian Government was right in
maintaining that payment was only due in French paper currency.

Held: That agreement contains promise to pay in Gold in certain condition (eg amount of
bond drawn for redemption but not refunded). The gold referred is not gold coins but use of
gold as a standard of value. The standard of value in Gold at the time was gold franc which
had been created through an agreement between three countries. The provisions regarding
gold standard of value is a binding obligation which was entered into with an intention to
apply the gold standard in certain exigencies. Serbia had argued that obligations entered into
were subject to French law and French law renders a clause for payment in gold null and void
and therefore payment in gold stipulation would not apply. The court held that the Serbian
law applied to the substance of contract and even if payment had to be made in France and
for that purpose French law would apply, yet, the doctrine of the French courts that
any gold stipulation is null and void holds good only for a domestic
transaction, this does not hold good in the case of international contracts,
even when payment is to be effected in France. In these circumstances,
there is nothing to prevent the creditors in this case from requiring
payment in France of the gold value stipulated for.
Brazilian Loan case:
Facts: Similar as above. Here loans were issued in France. The yield of the loans were
credited to receive it in French paper francs at the current values and the bondholders for a
large number of years including during the first years of the depreciation of franc, accepted
without apparent protest payment of the loan in that currency. But when franc depreciated a

lot, the French government intervened with the Brazilian government on behalf of the French
holders of Brazilian loans, claiming redemption on a gold basis.
Issue: Similar as above- whether payment to be made in paper franc or gold franc
Held- All the loans provided for payment of principal and interest in gold. Gold loan here
refers to gold Franc. Here too the court held that Brazilian law will apply but the currency on
which the payment has to be made would be governed by French law. Court held that
therefore payment should be made in gold franc. Even if gold standard were null and void in
domestic law of France, it was not so in international transactions.
Note that in both these cases court has to look into applicability of municipal law (which
law?), but court never went on to interpret the municipal laws.
Quote from the Judgment
Though bound to apply municipal law when circumstances so require, the
court which is a tribunal in international law, and which, in this capacity, is
deemed itself to know what this law is, is not obliged also to know the
municipal laws of various countries. All that can be said in this respect is
that the court may possibly be obliged to obtain knowledge regarding the
municipal law which has to be applied. And this it must do, either by
means of evidence furnished to it by the parties or by means of any
researches which the court may think fit to undertake or to cause to be
undertaken.
Once the court has arrived at the conclusion that it is necessary to apply
the municipal law of a particular country, there seems no doubt that it
must seek to apply it as it would be applied in that country. It would not be
applying the municipal law of a country if it were to apply it in a manner
different from that in which the law would be applied in the country in
which it is in force.
It follows that the court must pay the utmost regard to the decisions of the
municipal courts of a country, for it is with the aid of their jurisprudence,
that it will be enabled to decide what are the rules which in actual fact,
are applied in the

country the law of which is recognised as applicable in

a given case. If the courts were obliged to disregard the decisions of the
municipal

courts,

the

result

would

be

that

it

might

in

certain

circumstances apply rules other than those actually applied; this would

seem to be contrary to the whole theory on which the application of

municipal law is based.
Of course the court will endeavour to make a just appreciation of the
jurisprudence of municipal courts. If this is uncertain or divided, it will rest
with the court to select the interpretation which it considers most in
conformity with the law. But to compel the court to disregard that
jurisprudence would not be in conformity with its functions when applying
municipal law. As the court has already observed in the judgment in the
case of Serbian loans.

Nottebohm case:
Facts: Liechtenstein claimed restitution and compensation on the ground that the
Government of Guatemala had acted towards Mr. Friedrich Nottebohm, a citizen of
Liechtenstein, in a manner contrary to international law. Guatemala, for its part, contended
that the claim was inadmissible on a number of grounds, one of which related to the
nationality of Nottebohm, for whose protection Liechtenstein had seized the Court. In its
Judgment the Court accepted this latter plea in bar and in consequence held Liechtenstein's
claim to be inadmissible.
Guatemala referred to the well-established principle that it is the bond of nationality between
the State and the individual which alone confers upon the State the right of diplomatic
protection. Liechtenstein considered itself to be acting in conformity with this principle and
contended that Nottebohm was, in fact, its national by virtue of the naturalization conferred
upon him.
The Court considered the facts. Nottebohm, born at Hamburg, was still a German national
when, in October 1939, he applied for naturalization in Liechtenstein. In 1905 he went to
Guatemala, which he made the centre of his business activities, which increased and
prospered. He sometimes went to Germany on business and to other countries for holidays,
and also paid a few visits to Liechtenstein, where one of his brothers had lived since 1931 ;
but he continued to have his fixed abode in Guatemala until 1943, that is to say until the
events which constituted the basis of the present dispute. In 1939 he left Guatemala at
approximately the end of March; he seems to have gone to Hamburg and to have paid a few
brief visits to Liechtenstein, where he v/as at the beginning of October 1939.

It was then, on 9th October, 1939, a little more than a month after the opening of the Second
World War, marked by Germany's attack on Poland, that he applied for naturalization in
Liechtenstein.
The necessary conditions for the naturalization of foreigners in Liechtenstein are laid down
by the Liechtenstein Law acceptance into the Home Corporation (Heimat verband) of a
Liechtenstein commune has been promised to him in

case of acquisition

of the nationality of the State; that, subject to waiver of this requirement under stated
conditions, he must prove that he will lose his former nationality as the result of
naturalization; that he has been resident in the Principality for at least three years, although
this requirement can be dispensed with in circumstances deserving special consideration and
by way of exception; that he has concluded an agreement concerning liability to taxation with
the competent authorities and has paid a naturalization fee. The Law reveals concern that
naturalization should only be granted with full knowledge of all the pertinent facts and adds
that the grant of nationality is barred where circumstances are such as to cause apprehension
that prejudice may ensure to the State of Liechtenstein. As regards the procedure to be
followed, the Government examines the application, obtains information concerning the
applicant, submits the application to the Diet, and, if this application is approved, submits a
request to the Reigning Prince who alone is entitled to confer nationality. In his application
for naturalization Nottebohm also applied for the previous conferment of citizenship of
Mauren, a commune of Liechtenstein. He sought dispensation from the condition of three
years' prior residence, without indicating the special circumstances warranting such a waiver.
He undertook to pay (in Swiss francs) 25,000 francs to the Commune and 12,500 francs to
the State, the costs of the proceedings, and an annual naturalization tax of 1,000 francs
subject to the proviso that the payment of these taxes was to be set off against ordinary taxes
which would fall due if the applicant took up residence in Liechtensteinand to deposit as
security the sum of 30,000 Swiss francs.
A Document dated 15th October, 1939 certifies that on that date the citizenship of Mauren
had been conferred upon him. A Certificate of 17th October, 1939 evidences the payment of
the taxes required to be paid. On 20th October Nottebohm took the oath of allegiance and on
23rd October an arrangement concerning liability to taxation was concluded. A Certificate of
Nationality was also produced to the effect that Nottebohm had been naturalized by a
Supreme Resolution of the Prince of 13th October, 1939. Nottebohm then obtained a

Liechtenstein passport and had it visa-ed by the Consul General of Guatemala in Zurich on
1st December, 1939, and returned to Guatemala at the beginning of 1940, where he resumed
his former business activities.
These being the facts, the Court considered whether the naturalization thus granted could
be validly invoked against Guatemala, whether it bestowed upon Liechtenstein a
sufficient tide to exercise protection in respect of Nottebohm as against Guatemala and
therefore entitled it to seize the Court of a claim relating to him. The Court did not
propose to go beyond the limited scope of this question. In order to establish that the
Application must be held admissible, Liechtenstein argued that Guatemala had formerly
recognized the naturalization which it now challenged.
Examining Guatemala's attitude towards Nottebohm since his naturalization, the Court
considered that Guatemala had not recognized Liechtenstein's title to exercise protection
in respect to Nottebohm. It then considered whether the granting of nationality by
Liechtenstein directly entailed an obligation on the part of Guatemala to recognize its effect;
in other words, whether that unilateral act by Liechtenstein was one which could be relied
upon against Guatemala in regard to the exercise of protection. The Court dealt with this
question without considering that of the validity of Nottebohm's naturalization according to
the Law of Liechtenstein.
Nationality is within the domestic jurisdiction of the State, which settles, by its own
legislation, the rules relating to the acquisition of its nationality. But the issue which the
Court must decide is not one which pertains to the legal system of Liechtenstein; to exercise
protection is to place oneself on the plane of international law. International practice provides
many examples of acts performed by States in the exercise of their domestic jurisdiction
which do not necessarily or automatically have international effect. When two States have
conferred their nationality upon the same individual and this situation is no longer confined
within the limits of the domestic jurisdiction of one of these States but extends to the
international field, international arbitrators or the Courts of third States which are called upon
to deal with this situation would allow the contradiction to subsist if they confined themselves
to the view that nationality is exclusively within the domestic jurisdiction of the State. In
order to resolve the conflict they have, on the contrary, sought to ascertain whether
nationality has been conferred in circumstances such as to give rise to an obligation on the
part of the respondent State to recognize the effect of that nationality. In order to decide this

question, they have evolved certain criteria. They have given their preference to the real and
effective nationality, that which accorded with the facts, that based on stronger factual ties
between the person concerned and one of these States whose nationality is involved.
Different factors are taken into consideration, and their importance will vary from one case to
the next: there is the habitual residence of the individual concerned but also the centre of his
interests, his family ties, his
The same tendency prevails among writers. Moreover, the practice of certain States, which
refrain from exercising protection in favour of a naturalized person when the latter has in fact
severed his links with what is no longer for him anything but his nominal country, manifests
the view that, in order to be invoked against another State, nationality must correspond with a
factual situation.
The character thus recognized on the international level as pertaining to nationality is in no
way inconsistent with the fact that international law leaves it to each State to lay down the
rules governing the grant of its own nationality. This is so failing any general agreement on
the rules relating to nationality. It has been considered that the best way of making such rules
accord with the varying demographic conditions in different countries is to leave the fixing of
such rules to the competence of each State. But, on the other hand, a State cannot claim that
the rules it has laid down are entitled to recognition by another State unless it has acted in
conformity with this general aim of making the nationality granted accord with an effective
link between the State and the individual. According to the practice of States, nationality
constitutes the juridical expression of the fact that an individual is more closely connected
with the population of a particular State. Conferred by a State, it only entitles that State to
exercise protection if it constitutes a translation into juridical terms of the individual's
connection with that State.
Is this the case as regards Mr. Nottebohm? At the time of his naturalization, does Nottebohm
appear to have been more closely attached by his tradition, his establishment, his interests, his
activities, his family ties, his intentions for the near future, to Liechtenstein than to any other
State?
In this connection the Court stated the essential facts of the case and pointed out that
Nottebohm always retained his family and business connections with Germany and that there

is nothing to indicate that his application for naturalization in Liechtenstein was motivated by
any desire to dissociate himself from the Government of his country. On the other hand, he
had been settled for 34 years in Guatemala, which was the centre of his interests and his
business activities. He stayed there until his removal as a result of war measures in 1943, and
complains of Guatemala's refusal to readmit him. Members of Nottebohm's family had,
moreover, asserted his desire to spend his old age in Guatemala. In contrast, his actual
connections with Liechtenstein were extremely tenuous.
If Nottebohm went to that country in 1946, this was because of the refusal of Guatemala to
admit him. There is thus the absence of any bond of attachment with Liechtenstein,but there
is a long-standing and close connection between him and Guatemala, a link which his
naturalization in no way weakened. That naturalization was not based on any real prior
connection with Liechtenstein, nor did it in any way alter the manner of life of the person
upon whom it was conferred in exceptional circumstances of speed and accommodation.
In both respects, it was lacking in the genuineness requisite to an act of such importance, if it
is to be entitled to be respected by a State in the position of Guatemala. It was granted
without regard to the concept of nationality adopted in international relations. Naturalization
was asked for not so much for the purpose of obtaining a legal recognition of Nottebohm's
membership in fact in the population of Liechtenstein, as it was to enable him to substitute
for his status as a national of a belligerent State that of the subject of a neutral State, with the
sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded
to its traditions, its interests, its way of life or of assuming the obligationsother than fiscal
obligationsand exercising the rights pertaining to the status thus acquired. For these
reasons the Court held the claim of Liechtenstein to be inadmissible
Alabama Claims Tribunal
Facts: Despite its declared neutrality with regard to the US Civil War, the United Kingdom
had not prevented British ports from being used to outfit ships in the Confederate Navy (the
South) during the course of war with North (the Union). The most notorious example was the
Confederate ship known as the Alabama which was believed to have sunk over 60 Union
ships before it was finally sunk. After the Union (the North) won the Civil War, the US
government was anxious to hold the UK accountable for what was perceived to be a very
serious violation of the international law of war and peace. The 1871 Treaty of Washington
between the US and the UK created the Alabama claims via international arbitration. The
treaty established a five-person Tribunal of Arbitration.

Held : Court held that neutrality required exercise of due diligence. The British failed to
exercise due diligence by allowing construction of Alabama at Liverpool and fitting of
equipment and armament in vicinity, despite official warning by the US. The ship entered
numerous times within British territorial waters but no action was taken. Further, the
government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the
plea of insufficiency of the legal means of action which it possessed

4. Status of International Law in Municipal sphere

1. United Kingdom:
Customs
United Kingdom has an unwritten constitution. But parliament enjoys supremacy in making
or changing the law. The conclusion and termination of treaties and the conduct of foreign
affairs are the prerogative of the crown i.e. carried by executive accountable to the
parliament.
The initial approach- Blackstonian concept of incorporation The law of nations is here
adopted in its full extent by the common law and is held to be part of the law of the land.
Therefore the English courts would give effect to settled rules of international law as part of
the English law.
2nd approach- Doctrine of Transformation- R vs Keyn The court did not follow
incorporation theory. Rather it said that the rule was not applicable ex proprio vigour but it
was for the parliament to legislate. But the decision of the court was reversed by the
Territorial Waters jurisdiction Act 1878.
R Vs Keyn
Facts: Collision between the German ship F and British ship S within three miles of English
coast. German captain was prosecuted by British court for manslaughter of a passenger on
board S.
Issue: Whether the British court had jurisdiction in the matter?
If the territorial sea of Britain extended up to three miles, then the British court would have
jurisdiction, if not, then it would have no jurisdiction. In this context, the question was
whether three miles of sea around the coast of Britain had become its territorial sea by
International custom? If so, British court would have jurisdiction, otherwise not.
Held: According to Cockburn J, according to ancient law of England, three miles was not
territorial sea of Britain. With respect to the question whether an international custom had
evolved laying down British territorial sea as three miles, he said that even if it had evolved,
it would not apply without legislation at the municipal level:

Even if the entire unanimity had existed..the question would still remain, how far the law
as stated by the publicists had received the assent of the nations who are to be bound by it
Nor in my opinion, would the clearest proof of unanimous assent on the part of other nations,
be sufficient to authorise the tribunals of this country to apply, without an act of parliament,
what would practically amount to a new law. In so doing we would unjustifiably usurping the
province of the legislature.
Cockburn J could not find evidence of any such custom either in treaties or usages.
3rd approach- return of incorporation theory in modified form West Rand Gold Mining
Co Vs R
Judge Alverstone: it is quite true that whatever has received the common consent of civilised
nations, must have received the assent of one country and as such will be acknowledged and
applied by our municipal tribunals. Bu the law of nations forms part of the law of England,
ought not to be construed to include .as to which there is no evidence that if they are
contrary to the principles of her laws so declared by her courts.
Facts: West Rand Gold Mining Co Ltd (the company) was an English company which owned
and operated a goldmine in the Transvaal, part of the South African Republic (the
Republic). In October 1899, quantities of gold owned by the company were seized by the
government of the Republic of Great Britain in September 1900. In this proceeding the
company sought to establish that the British government was liable to the company for the
gold seized by the previous government, the republic.
Held: Under Customary International Law, Great Britain, as the state which had conquered
and annexed the Republic had not in the absence of express stipulation, succeeded to the
obligation owed by the Republic to the company to return the seized gold or its value. Under
the principles of state succession forming part of customary International law, a conquering
state does not become liable to discharge the financial obligations of the conquered state
unless the conquering state has agreed expressly to do so.

Qualifications in Incorporation theory

Chung Chi Cheng Vs. the King
Facts: Chung Chui Cheung the appellant in the privy council was a member of the
crew of a foreign armed public ship the Chinese maritime cruiser Cheung Keng . In
January 1937, while the ship was in the territorial waters of HongKong a British
crown colony, the appellant shot and killed the captain of the ship. In respect of this
offence, the appellant was convicted of murder by the Supreme Court of Hong Kong
after the Chinese government waived any immunity from jurisdiction to which the
appellant may have been entitled. On appeal to the privy council, the appellant
contended that as a member of foreign armed public ship, he was not subject to the
jurisdiction of the Supreme Court of Hong Kong.

Held: Under Customary International Law, a foreign armed public ship in the
territorial waters of a coastal state is not a part of the territory of the state to which the
ship belongs. A criminal offence committed on a foreign armed public ship in the
territorial waters of a coastal state is an offence committed in and subject to the
jurisdiction of the coastal state. In this regard, the supposed theory of
extraterritoriality that a foreign armed public ship is a floating island of the state to
which the ship belongs is a fiction which must be rejected. Any immunity, if any,
granted to appellant by virtue of customary international law was waived by the
Chinese government.
Lord Atkin made following observation with regard to relationship between
International and municipal law:
The Courts acknowledge the existence of a body of rules which nations accept among
themselves. On any judicial issue they seek to ascertain what the relevant rule is and having
found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent
with rules enacted by statutes or finally declared by their tribunals.
Therefore qualifications recognised here are:
- not inconsistent with municipal statute or judicial decisions
R vs Jones ( Margeret) ( case analysis westlaw)
Summary: The crime of aggression was neither capable of being a "crime" within the
meaning of the Criminal Law Act 1967 s.3 nor an "offence" within the Criminal
Justice and Public Order Act 1994 s.68(2). Therefore, individuals facing charges for
criminal damage and aggravated trespass arising out of their actions in protesting
against the war in Iraq could not argue that they were using reasonable force to
prevent the commission of a crime, or that the activities of the Crown at the military
bases were unlawful.
In joined proceedings, the court was required to determine questions that had been
certified as being of general public importance in cases concerned with the legal
justification of acts that would otherwise be criminal offences ([2004] EWCA Crim
1981, [2005] Q.B. 259 and [2005] EWHC 684, [2005] Q.B. 227). The appellants (X)
had all been charged with or convicted of aggravated trespass or criminal damage
arising out of their separate, independent actions taken at military bases by way of
protest against the war in Iraq. X had claimed that they were entitled to rely upon the
Criminal Law Act 1967 s.3 , as they were using reasonable force to prevent the
commission of a crime, or that their acts of disruption were not aggravated trespass
because the activities of the Crown at the military bases were not lawful within the

meaning of the Criminal Justice and Public Order Act 1994 s.68(2) , since they were
being carried out in pursuance of a crime of aggression under customary international
law. The questions certified were whether the crime of aggression was capable of
being a "crime" within the meaning of s.3 of the 1967 Act and, if so, whether the issue
was justiciable in a criminal trial, and whether the crime of aggression was capable of
being an "offence" within s.68(2) of the 1994 Act and, if so, whether the issue was
justiciable in a criminal trial. X contended that
(1) customary international law was, without the need for any domestic statute or
judicial decision, part of the domestic law of England and Wales;
for the purposes of the instant proceedings, the court accepted that customary
international law was, without the need for any domestic statute or judicial
decision, part of the domestic law of England and Wales, since the Crown did not
challenge that proposition. Lord Bingham or Cornhill I accept the general truth
of the proposition but I would hesitate at any rate without much fuller argument,
to accept this proposition in quite the unqualified terms in which it has been
stated.
(2) crimes recognised in international customary law were, without the need for any
domestic statute or judicial decision, recognised and enforced by the domestic law
of England and Wales;
It was at least arguable that war crimes, recognised as such in customary
international law, would be triable and punishable under English domestic
criminal law. However, war crimes were distinct from the crime of
aggression( war crimes have been incorporated through legislation Also note that
there are some serious offences which violate jus cogens and attract universal
jurisdiction one of them is war crimes- see - Pinochet case). A crime recognised in
customary international law might be assimilated into the domestic criminal law
of England and Wales. However, the authorities did not support the proposition
that that result followed automatically, R. v Keyn (Ferdinand) (The Franconia)
(1876) 2 Ex. D. 63 considered and Hutchinson v DPP Independent, November 20,
2000 applied.
Lord Bingham I would accept that a crime recognised in customary International
law may be assimilated into the domestic criminal law of a country. However, I
donot accept that the result would follow automatically. The authors as I read
them donot support this proposition. Lord Cockburn Cj rejected it in R vs Keyn
In R vs Row Street Metropolitan Stipendaary Magistrate, Ex p Pinochet Ugarte
the issue was whether British court had jurisdiction before section 134 of the
Criminal Justice act (which made torture a criminal offence), came into force to
try those accused to torture abroad. But, I agree with observation of Buxton LJ in
Hutchinson vs Newbury Magistrates court where a similar contention was
forwarded. He held that it was only with passing of the section 134 of the
criminal justice act 1988 that English criminal courts acquired jurisdiction over
international that is to say extra territorial torture. Also in context of Genocide,
automatic assimilation as rejected by a majority of the Federal Court of Australia

in Nulyarimma vs Thompson. In the context of abduction it was rejected by the

US supreme court in Sasa Vs Alverez Machain.. It is I think true that customary
international law is applicable in the English courts only where the constitution
permits. Quoting Sir Franklin Benjamin that International law could not create a
crime triable directly without intervention of Parliament in English court.
However, International law could, establish legal basis (legal justification) for
parliament to legislate so far as it purports to exercise control over the conduct of
non national abroad. This answer is inevitably toed up with the attitude taken
towards the possibility of the creation of new offences under common law. In as
much as reception of customary international law into English law takes place
under the common law na din as much as the development of new customary
international law remains very much a consequence of the international behaviour
by the executive in which neither the legislature nor the courts nor any other
branch of the constitution need have played any part, it would be odd if the
executive could by means of that kind, acting in concert with other states, amend
or modify specifically the criminal law with all the consequences that flow for the
liberty of the individuals and rights of personal property. Power to create crime
should be regarded as reserved exclusively to parliament by statute.
(5) alternatively, "crime" in s.3 meant a crime in the domestic law of England and
Wales, and the crime of aggression was such;
It was clear that the crime of aggression was not a crime in the domestic law of
England and Wales within the meaning of s.3. The fact that it had not been
incorporated by statute was relevant. There existed no power in the courts to create
new criminal offences; statute was the only source of new criminal offences,
Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] A.C. 435 applied.
When it was sought to give domestic effect to crimes established in customary
international law, the practice was to legislate. There were no compelling reasons
in the instant case for departing from the democratic principle that it was for
Parliament, not the executive or judiciary, to determine what types of conduct
attracted criminal penalties. The court would be very slow to review the exercise of
prerogative powers in relation to the conduct of foreign affairs and the deployment of
the armed services, and slow to adjudicate on rights arising out of transactions entered
into between sovereign states on the plane of international law.
The court in this case recognised the following qualifications:
- Crimes (with a few exceptions)
- Custom should not be inconsistent with any British statute whether the statute was
earlier or later than the customary rule
- If the highest court once determined the scope of such a rule, then it will be binding
on all the courts in Britain even though a new rule has emerged in its place (doctrine
of precedent or stare decisis)

Limitation on the above qualification of stare decisis: Trendtex trading corporation

caseThe rule of stare decisis operates to preclude a court from over riding a decision
which binds it in regard to a particular rule of International law, it does not prevent a
court from applying a rule which did not exist when the earlier decision was made if
the new rule has the effect in International law of extinguishing the old rule.
Other qualifications where direct application of international customary law has
not been allowed by British courts
- Act of state such as declaration of war or cessation of territory, irrespective of the
violation of International law
The crowns prerogative, such as granting of recognition to states or governments, or
diplomatic status or immunity to certain persons
Customary international law versus municipal statute
In R vs Chief Immigration officer, Heathrow airport the court held that where
there is a conflict between the British statute and a rule of International law, the courts
construe the statute in such a way as not to go against that custom. However in Cf
Polites vs commonwealth, the court held that is the statue is otherwise clear and un
ambiguous, it will be given effect over the custom, thought the court may rule that the
statute is in breach of international law.

Treaty practice
England is an example of the dualist model of international law The application of treaty
rules in England is primarily conditioned by the constitutional principles governing the
relations between the executive (crown) and Parliament. The negotiation, signature and
ratification of treaties are matters belonging to the prerogative powers of the crown.
However, for performance of the treaty at the municipal level, merely signing and ratifying is
not sufficient. Legislation needs to be passed where and if application of treaty would require
altering municipal law, or imposing rights and obligation on citizens or financial burden etc.
Lord Atkin in Attorney General of Canada v. Attorney General of Ontario & others
observed;
It will be essential to keep in mind the distinction between (1) the formation, (2) the
performance of the obligations constituted by a treaty..Within the British Empire there is a
well established rule that the making of a treaty is an executive act, while the performance of
its obligations, if they entail alteration of the existing domestic law, require legislative action.
Unlike some other countries the stipulations of a treaty duly ratified do not within the empire,
by virtue of the treaty alone, have the force of law. If the national executive, the Government
of the day, decide to incur the obligations of a treaty, which involve alteration of law, they
have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes.
To make themselves as secure as possible they will often in such cases before final
ratification, seek to obtain from Parliament an expression of approval. But it is not the law,

that such an expression of approval operates as law, or that in law it precludes the assenting
Parliament or any subsequent Parliament from refusing to give its sanction to any legislative
proposals that may subsequently be brought before it. Parliament has a constitutional control
over the executive; the creation of the obligations undertaken in treaties and the assent to
their form and quality are the functions of the executive alone. Once they are created, while
they bind the state as against the other contracting parties, Parliament may refuse to perform
them and so leave the state in default. The question is not how is the obligation
formed, that is the function of the executive; but how is the obligation to be performed and
that depends upon the authority of the competent legislature or legislatures.

The House of Lords in J. H. Rayner Limited v. Dept. of Trade and Industry, affirmed the
ratio of the above decision. The court recognised that a treaty may be incorporated into or
alter the laws of the UK by means of legislation and except to the extent that a treaty becomes
incorporated into the laws of the UK by statute the court of the UK have no power to enforce
treaty rights and obligations at the behest of a sovereign government or at the behest of a
private individuals. It was observed that;
The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate
a treaty. Parliament may alter the laws of the United Kingdom. The courts must enforce those
laws; judges have no power to grant specific performance of a treaty or to award damages
against a sovereign state for breach of a treaty or to invent laws or misconstrue legislation in
order to enforce a treaty.
In parlement belge case court held that treaty cannot affect private rights unless it has been
made a part of British law by an act of parliament. The decision was however reversed by the
court of appeal on the ground that the immunity sought was available at the customary
International law and hence at common law, the decision of te court at the first instance, is
still significant for the proposition that the crown by entering into a treaty cannot alter the law
of England.
Thus it has become established in England that the following categories of Treaties must
receive Parliamentary assent through an enabling Act of Parliament and if necessary, any
legislation to effect the requisite changes in the law must be passed: 1) Treaties, which affect
the private rights of British subjects. 2) Treaties which involve any modification of the
common or statute law by virtue of their provisions or otherwise 3) Treaties which require the
vesting of additional powers in the crown 4) Treaties, which impose additional financial
obligations, dissect or contingent upon the government.
Further, there is also a practice of obtaining statutory sanction for execution and application
of a treaty, for acts which at common law the executive has no power to do, is well illustrated
in the case of Waker v. Baird. There the crown had entered into an agreement with the
Republic of France, of the nature of a modus vivendi, for regulating the lobster fisheries on
and off the coast of Newfoundland. One of the terms of this agreement was that on a certain
part of the coast no new lobster factory should be established after 1 July 1889, without the

joint consent of the commanders of the British and French naval stations respectively. The
defendant the captain of a British fishery patrol vessel, was authorized by the Lords
Commissioners of the Admiralty, by command of Her Majesty, to superintend the execution
of this agreement and in the course of his duty he entered and took possession of the lobster
factory of the plaintiff, a British subject, on the ground that, having been established after 1
July 1889 without such consent, it contravened the agreement. It was held by Privy Council,
affirming the decision of the Supreme Court of Newfoundland in an action for trespass, that
the defendants plea of act of state, based upon alleged right in the Crown to take steps for
the execution of the treaty, was bad.
The position as to whether individuals can rely upon the provisions in treaties concluded
by England as the basis for a claim in England Court was explained by Lord Oliver in
Maclaine Waston v. Dept. of Trade;
.as a matter of the constitutional law of the United Kingdom, the royal prerogative, whilst
it embraces the making of treaties, does not extend to altering the law or conferring rights on
individuals or depriving individuals of rights which they enjoy in domestic law without the
intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing.
Quite simply, a treaty is not part of English law unless and until it has been incorporated in to
the law by legislation. So far as individuals are concerned, it is res inter alios acta from which
they cannot derive rights and by which they cannot be deprived of rights or subjected to
obligations; and it is outside the purview of the court not only because it is made in the
conduct of foreign relations which are a prerogative of the Crown, but also because, as a
source of rights and obligations, it is irrelevant.

Similarly in R. v. Secretary of State for the Home Department Ex.P Brind, Court held that
a treaty to which Britain is a party should be referred to and followed in an ambiguous
statute. But such treaty will not prevail over a clearly worded statute which contradicts it.
.when Parliament has been content for so long to leave those who complain that their
Convention rights have been infringed to seek their remedy in Strasbourg (EU convention), it
would be surprising suddenly to find that judiciary had, without Parliaments aid, the means
to incorporate the Convention in to such an important area of domestic law and I can not
escape the conclusion that this would be a judicial usurpation of the legislative function
To sum up:
- Treaties do not bind the British courts ipso facto, legislation is required for creating internal
effect
- Treaties which (1) affect the private rights of British subjects (2) involve any modification
of common law or statute of England (3) create additional financial burden on government
exchequer for their implementation (4) invest the crown with additional powers

should receive parliamentary approval through an act of parliament and if necessary to bring
legislative changes in the existing law. Treaties made subject to the approval of parliament for
their application are usually so approved in the form of a statute. Treaties involving the
cession of British territory must be approved by parliament through a statute.
Exception: Treaties relating to the belligerent rights of the crown or informal administrative
agreements, not requiring involving the alteration of municipal law do not require any
legislation
Where a treaty has been legislated upon, it will prevail over conflicting statute. Where treaty
has not been legislated, it may be referred for interpretation of conflicting statute