Question of primacy: Where does primacy reside in International Law or in state law. Rule of ultimate primacy of state law was claimed to break down in two crucial cases:
1. If International Law has drew its validity only from state constitution, it would necessarily cease its validity when authority rested upon disappears. But valid operation of International Law does not invalidate its importance and regard. After the Belgium became independent state, treaties had not lost their force despite internal constitutional changes.
2. When new states enter in international society then International Law binds them without their consents. Every state is duty bound to bring not only its laws but also its constitution in accordance with International Law.
State practices: There are certain state theories where International Law is applied in municipal courts and upto what extent. Whether its conflict with municipal law loses its validity or not.
Application of International Law by municipal courts: In states, the practice as to apply International Law by municipal courts is different from each other.
Some states have interpreted in their constitution to apply International Law and therefore, their municipal courts are bound to apply International Law such as Germany, Korea, USA, etc. But in most states, the municipal courts apply International Law conditioned upon the precedence and the practices of the state.
British practice draw a distinction between:
1. Customary rule of International Law.
2. Rules which are laid down by treaties.
British practice: The rule as to customary International Law to the current of modern judicial authority as that customary rules of International Law are deemed to be a part of the law of the land and applied as such by British municipal courts.
Subject to qualifications: International Law is deemed to be part of the law of land and applied in municipal courts, subject to two important conditions:
1. Whether such rules are not inconsistent with British statutes even statute is earlier or later in date than particular customary rule concerned.
2. Once the British courts of final authority have determined the customary rule, all British courts are thereafter bound to follow them even though a divergent customary rule of International Law later develops.
Chung Chi Chaung v R: In this case Lord Atkin declared that, “the courts acknowledge the existence of a body of rules which nations accept among themselves.”
Practice as to treaties: The British practice as to treaties, as distinct from customary rules of International Law, is conditioned primarily by the constitutional principles governing the relations between the Executive and Parliament.
Treaties requiring approval by Parliament: Treaties which effect the private rights of British subjects, or involve any modification of the common or statute law by virtue of their provisions, must receive assent of parliament through an enabling Act of Parliament.
Treaties inconsistent with statutes: Where a statute contains provisions inconsistent with those of an earlier treaty, a British municipal Court must apply the statute in preference to the treaty.
The law of nations, wherever any question arises which is properly the object of its jurisdiction is here adopted in its full extent by the common law and it is held, to be a part of the law of the land. The courts acknowledge the existence of a body of rules which nations accept among them. 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.
It is a recognized prerequisite of the adoption in British municipal law of a doctrine of public International Law that it shall have attained the position of general acceptance by civilized nation as a rule of international conduct evidenced by international treaties and conventions, authoritative textbooks, practice, and judicial decisions.
American practice: American practice is similar with as British practice is, as for as the matters of the customary rules of International Law is concerned. They are administrated as part of the law of the land. Also an American Court is entitled to ascertain the rules of International Law on a particular point by referring to textbooks, state practice, and other sources.
Practice as to customary International Law - similar to the British practice: In the matter of customary rules of International Law, the American practice is very similar to the British practice.
Part of the law of land: Such rules are administered as a part of the law of the land.
Construction of the Acts: The American courts construe the Act of the US Congress so as to conflict with the customary International Law.
Suggestions of the Executive: The suggestions of the Executive regarding such matter as the public character and immunity from legal jurisdiction of foreign vessel, and the status of diplomatic envoys, has preference over the customary rules of International Law.
Latter clear statute: A latter statute prevails over an earlier customary rule of International Law.
Practice as to treaties - different from British practice: There is radical difference in matter of treaties as the British practice. American practice does not follow the reconciliation between the prerogative powers of the executives and the legislative domain of parliament, but upon the provisions of the constitution of America.
Supreme law of the land: The American practice as to treaties depends upon the provisions of the constitution, which declares that “treaties are the supreme law of the land.”
Conclusion: Each and every system is supreme in its own field and neither has dominance over the other. Arguments offered just provide a background to the complex relations between the two systems. Three factors operate on the subject matter:
1. To what extent state organs are willing to apply rules of International Law internally and externally. This raises the responsibility, sanctions, and non-recognition of illegal effects.
2. The second factor is difficulty of proving the existence of particular rules of International Law. In case of difficulty municipal courts may rely on advice from the executive or existing internal precedents, and the result may not accord with an object appreciation of the law.
3. Thirdly, courts, both municipal and international, will often the concerned with the more technical question as to, which is the appropriate system to apply to particular issues arising.
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