1. 2.1 IL & ML INTERNATIONAL LAW VS MUNICIPAL LAW Municipal law is the technical name given by lawyers to the natural or internal law of state. The question between the relation between ML and IL give rise to a number of practical problems: Which rule prevails over a case? How IL affect ML

2. 3. IL&ML Dualist theory Assumes that IL & ML are two separate legal entities that exist independent of each other, but the central question is which one is superior.

3. 4. IL&ML Monist view Unitary perception of law forming part of radical theorist of monist view argued that the ultimate source of validity of law is derived from basic rule of IL (Grund norm). This led to the conclusion that a municipal law inconsistent with international law was automatically null and void and that rules of international law are directly applicable in the domestic sphere of states.

4. 5. IL&ML Harmonisation theory According to this school of thought neither monism nor dualism provides an answer to true relationship between the two. The point is the legal order that man lives is not in jurisdiction, but in both. I L are concordant bodies of the doctrine, autonomous but harmonises in their basic human good.

5. 5. IL&ML The attitude of IL to ML. IL does not entirely ignore ML. International tribunals acknowledge the primacy of IL over ML and do not apply municipal law that is inconsistent with IL. Hence municipal law in the eyes of international tribunals has no binding effect except within the municipal system.

6. 6. ML&IL CASE. In PINSON’S CASE UN rep. vol v. 327, 393 (1928) an international tribunal ignored provisions of a Mexican law granting citizenship to French Georges Pinson, which would have had the effect of excluding France from exposing his claim at the international level.

7. 7. IL&ML Article B of the Draft declaration on the rights and declaration duties of states 1949 explains clearly “every state has the duty to carryout in good faith its obligation 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 its duty”

8. 8.IL&ML The Vienna Convention on the law of treaties 1969 provides in article 27 “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”

9. 9. ML&IL Treatment of IL and ML by municipal tribunals. In common law countries; international customary law is treated as just part of the law of the land. In Britain for example the court will endeavour to apply municipal law in a manner that is compatibles with international customary law. READ: TRENDTEX TRADING CORP VS CENTRAL BANK OF NIGERIA 1927 QB 529, 553-4

10. 10. ML&IL But if there is a conflict there is no alternative but to apply municipal law. With regard to treaties the Britain practice is that treaties that affects private rights of British subjects or those that modify Britain law or impose additional financial obligations would require parliamentary ratifications.

11. 11. ML&IL In USA article VI (2) of the US constitution stance the supremacy of treaties provided they self-executing i.e. can be applied without further legislation and non self-executing treaty can only be applied after legislation.

12. 12 ML&IL Case FUJII VS STATE OF CALIFORNIA 38 CAL app 2d 718, 242 p. 2d617 (1952) the US supreme court held articles 55 and 56 of the UN Charter relating to human rights were no self executing and could not be applied without the requisite domestic legislation. A treaty in US can also be overridden by subsequent act congress.

13. 13 ML&IL In Tanzania, treaty making falls within the executive power of the president although he can delegate a minister, an ambassador or anyone to carryout the function. It need not be presented to parliament although the executive is free to do so. In case of REPUBLIC VS MUSHIYI AND REPUBLIC VS OMBISHI FILM VOL IX No 33 1970 p 556 the Kenyan high court noted that “ the enactment of the east African community are part of the law of Kenya” but clarified that if there is conflict between IL and ML there was no choice but apply the law of Kenya.

14. 14 ML&IL In civil law jurisdiction customary law is as also treated as part of the law of the land but legislation contravening it are restructuring interpreted. Article 10 of the Italian constitution provides that customary law takes precedence over statutes.

15. 15 IL&ML Practice varies in the application of treaties in the Netherlands and Luxemburg the primacy of international law is adequately protected. If the Dutch parliament ratifies a treaty that conflicts with the constitution, the constitution is automatically amended providing that the requisite majority for amending the constitution was obtained. Some courts treat legislation which is contrary to international law as invalid MARTIN VS RENOLD 1909 35 (1) BGE 594 SWITZERLAND.

16. 16 ML&IL It is clear that many countries the law sometimes fail to reflect the correct rule of international law. However this does not mean that the states are breaking IL. Very often the divergence between national and IL simply means that the respective state is unable to exercise rights which international law entitles that state to exercise.

17. 17. ML&IL Public and Private International Law There appear to be little connection between Public IL and various spheres of municipal systems of private IL.

18. 18 ML&IL Private IL originated from the belief that in certain circumstances it would be appropriate to apply foreign law or to let a court decide the case. However each state has its own idea of what if appropriate English courts normally enforce foreign judgement and some in Netherlands and several other countries are reluctant to enforce unless there is a treaty to that effect.

19. 19 ML&1L The rules that determine the jurisdiction of a state’s own courts in civil cases involving a foreign element differ in many respects that are impossible to discern any common pattern. How this view aught to be taken with the consideration that there are rules of private IL that are more or less the same in majority of countries.