The relation between

International Law and State Law

Shantanu Braj Choubey

Asst. Prof. Law
 The relation
• What are the limits of international law?

• To what extent can municipal courts give

effect to rules of international law?

• How can international tribunals give effect to

a rule of municipal law?
 Theories explaining this relation
• Monism and Dualism.
• Monism: international law and municipal law
are part of the same system
• Dualism: international law is different from
state law. Also known as the pluralistic theory.
 Dualism
• Earlier, monistic theory prevailed.
• In the 19th and 20th century, the view changed
in favour of Dualism.
• This happened with the rise of theories
centered around state-will.
• Positivists.
 Monism
• Natural law theorists.

• Single unity composed of binding legal rules.

• Both are part of the science of law.

• Kelsen: once it be accepted that intl law is a system of

rules of a truly legal character, it was impossible to deny
that the two systems constitute part of one legal system.
 The harmonization approach
• The two systems cannot collide.
• Of course there will be conflicts with regard to
obligations.
• Such conflicts should be resolved; internally
and externally.
 Specific Adoption Theory
• Positivists
• Intl law cannot directly be applied within
municipal sphere by state courts.
• In order to be so applied, it must go through a
process of ‘specific adoption’ into municipal
law.
• For ex: treaty must be transformed into state
law.
 Transformation Theory
• Treaties are different from municipal statutes.
• Treaties are promises while statutes are
commands.
• So a transformation from one to another is
indispensible.
• But does that deny true legal character to
treaties?
 The Delegation Theory
• Intl law delegates to each state constitution,
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.
• The procedure is a continuation of the process
begun with the conclusion of the treaty.
• It only amounts to prolongation of a single act.
 Operation of Intl. Law within Municipal
Sphere
• Britain draws a distinction between:
– Customary rules of intl. law, and
– Rules laid down by treaties.
• Customary rules are applied as part of the law of the
land, subject to two qualifications:
– Those rules should not be inconsistent with British statutes
– Once the scope of such customary rules is determined by
courts of final authority, all British courts are bound by that
determination, even if later a divergent rule develops.
• Earlier to this, in Britain, we had the
‘Blackstonian’ doctrine/incorporation
doctrine.
• Under this doctrine, customary intl law was
automatically deemed to be a part of the
municipal law.
 Impact of Incorporation Doctrine
• A rule of construction: Acts of Parliament
should be interpreted so as not to conflict
with intl. law.
• A rule of evidence: Intl law need not be
proved like foreign law. The courts will take
judicial notice of its rules.
 British Practice as to Treaties
• Negotiation, signature and ratification of
treaties are matters belonging to the
prerogatives of the Crown.
• But that shouldn’t amount to automatic
application of treaty obligations.
• So treaties which involve any major intrusion
on the legislative domain of Parliament will
require its assent.
 American Practice
• Intl legal rules are administered as part of the
law of the land.

• Acts are interpreted so as not to conflict with

intl. law.

• Later clear statues can override the effect of

intl law.
• American courts are entitled to ascertain the
rules of intl. law.

• Deference is paid to the views of the

executive.
 American Practice w.r.t. Treaties
• Diff from that of the UK.

• Art. VI, Para 2 of the US Constitution:

– “all Treaties made, or which shall be made under the
Authority of the United States’, shall be ‘the supreme
Law of the Land’.

• Distinction between ‘self-executing’ and ‘non-

self-executing’ treaties.
 Self-Executing Treaty
• One which does not require legislation to
make it operative within the municipal field.

• To be determined by the Courts.

• Depends on the intention of the signatory

parties and to the surrounding circumstances.
 Self-Executing Treaty (contd.)
• Example – a treaty within the terms of the
Constitution; can be contrary to a pre-existing
statute.

• It will prevail over a customary rule of intl law.

 Non-Self-Executing Treaty
• Such treaties which require legislation to be
binding.

• Treaties dealing with subject matters in

respect of which Congress has exclusive
legislative powers.

• Intention of the parties is of no relevance.

Intl. Tribunals and the operation of Municipal
Law
• A state cannot plead before an intl. tribunal as a
defense that its municipal law conflicts with intl.
law.

• Finnish Ships Arbitration Case:

– “As to the manner in which its municipal law is framed,
the State has under intl. law , a complete liberty of
action…provided that the municipal law is such as to
give effect to all the intl. obligations of the state.”
• This may even import a duty upon a state, in
an appropriate case, to pass the necessary
legislation to fulfil its intl. obligations.

• Same applies to treaties.

• Exception: a fundamental rule of municipal

law was broken while entering into the treaty.