Practical Approach: State Practice

On practical level, monist, dualist and coordination theories are rendered

unnecessary. International tribunals give preference to practice over theory.
The Practice sates that International law is given primacy over Municipal law.

The Principle of Primacy of International Law

When there is a conflict between rules of International Law and Municipal law
before an international tribunal, it is a settled principle that International Law is
supreme. Therefore, a state cannot plead the provisions of its law including its
constitution, or even the decision of its highest court to answer a claim against
it for an alleged breach of International Law obligations. This was seen in the case of

The Alabama Arbitration of 1872: In a case involving Britain and USA, the
court refused Britain’s argument that its municipal law hindered it from
observing its obligations of neutrality. The arbitrators found however that British
government had failed by commission to fulfill the duties prescribed by the Treaty
of Washington and rejected its argument.

Also in the case of Treatment of Polish nationals in Danzig 1932: The Permanent
court of International Justice held that Danzig could not adduce against Poland of
its constitution with a view of evading obligations incumbent upon it. The treaty of
Versailles, which created Danzig, was to determine how Polish nationals in Danzig
should be treated instead of Danzig’s constitution because it was even possible that
the constitution would be in violation of international law.

In the case of Advisory opinion in the UN Headquarters Agreement case 1988:

USA sought to rely on its Anti-terrorism Act of 1987 of municipal law as a
justification for not submitting to the Arbitration under the U.N. Headquarters
agreement between the U.N and the U.S.A. The agreement provided that in the event
of a dispute between the US and the UN, that dispute is to be submitted to the
Arbitration. Consequently, International Court of Justice pronounced itself that it
would be sufficient to recall the fundamental principle of International Law and that it
prevails over domestic law.

On the other hand it follows that when a conflict arise between obligations under
International Law and Municipal Law before a municipal Tribunal,the municipal law
prevails. Nevertheless, the conflict between a states’ municipal law and its
international obligations does not necessarily affect the validity of that law in the
municipal realm. A municipal statute contrary to International Law may be internally
recognized as valid but other states will be under no duty to recognize its external
effects.
The Practice in the USA
The rules of Customary International Law are administered as part of the law of the
land. Acts of congress are construed so as not to conflict with them. However, a letter
clear statute will prevail over earlier rules of customary International Law. The USA
constitution provides that all treaties made under the authority of the U.S. shall be part
of the supreme law of the land.

There are Self-executing treaties which are treaties that do not require legislation in
the American courts to make them operative within the municipal field. Once they are
ratified by USA they are binding on American courts even if in conflict with previous
American statutes provided there is no conflict with the constitution. Such a treaty
will prevail over the rules of Customary International Law. Treaties that are not self-
executing which require legislation to make them binding in the American courts, do
not bind American courts until the necessary legislation is enacted. A good example is
the SALT I and II (Strategic Arms Limitation Treaty)

The UK Practice
This is similar to the USA as far as the rules of Customary International Law is
concerned. It is done under the doctrine of Incorporation whereby rules of Customary
International law are automatically part of the English Law as long as they are not
inconsistent with acts of parliament or authoritative judicial decisions. The principle
that British courts cannot apply International law when there is a conflict between
customary International law and an Act of parliament is illustrated in the case of
Mortensen v Peters 1906.

UK practice in regard to the treaties; With regard to treaties, the position is different
because the conclusion and ratification of treaties are within prerogative of the crown.
This means that parliament has no part to play in this process. The net effect is that if
courts were to directly apply treaties in Municipal law, the crown would be in a
position of being able to alter English law without parliamentary consent.
Accordingly, treaties are part of English law only if an enabling act of parliament has
been passed to transform the provisions of the treaty into the English law. This
position is illustrated by the International Tin Council cases 1990 where the house of
Lords confirmed that the rule that English court could not examine the International
Tin Agreements to Establish the liability or otherwise the member states of the Tin
council because at this time the International Tin Agreements were not part of the law
of the UK.
There are two exceptions to the above rule:
(A). Under the provisions of the 1957 Treaty of Rome which established the European
Communities treaties adopted and laws enacted by the European community prevails
over the municipal laws of the member states and bind their courts. This is because
the laws are neither foreign nor external to the legal systems of the member states.
(B). The decisions of the European Court of Justice: As final, interpretation of
European Union Law are to be applied by the national Courts of the member states.
For instance, the 1950 European Convention of Human rights applied directly to UK
courts.
Position in South Africa
Customary International law is binding to the South African courts unless it is
inconsistent with the constitution or an act of parliament. International Agreements
shall bind South Africa only after they have been approved by resolutions in both
National Assembly and the National Council of Provinces; they have to be
domesticated by the National Assembly. However, self- executing treaties are binding
to its courts as long as they are consistent with the constitution and statute, and are
approved by parliament.

Position in Kenya
The repealed constitution was silent on what takes precedence in case of a
conflict between International law and Municipal law but the court in the case law of
Ukunda and Another v Republic held that in case of a conflict, Municipal Law would
prevail. It further stated that allowing International law to prevail was equivalent to
amending the constitution and this was against the provisions of the then constitution.
On appeal the court held that treaties do not become part of law of Kenya until made
so by the law of Kenya. Moreover, if the provisions of any treaty, having
been made part of the municipal law of Kenya, are in conflict with the
constitution of Kenya, then to the extent of such conflict, such provisions are
void.

Article 2 (6) of the 2010 constitution of Kenya states that any treaty or convention
ratified by Kenya shall part of the law of Kenya; in my personal opinion, while the
Constitution of Kenya 2010 did away with the process of domestication of a treaty in
order to apply in Kenya, the position still remains the same as the pre 2010
constitution in as far as conflict of International law and Municipal law is concerned.
This is because article 2 (4) of the constitution 2010 provides that any law including
customary law and that of any law including a treaty or convention ratified by Kenya,
that is inconsistent with the constitution is void to the extent of inconsistency. This
seems to suggest that in case there is a conflict between obligations under
International law and Municipal law, then ML shall prevail.

The Effect of Res-Judicata

There is no effect of Res-Judicta from the decision of a Municipal court as far as an
International tribunal is concerned. This is because as much as the subject matter may
be the same, the parties will not be the same and the issues will have different aspect.
In municipal court, the party is an individual or a corporation while in International
law court, the party is a state or an international legal person. In the same spirit, a
decision of an International Court does not of itself create a Res Judicata for the
Municipal Court.
The Concept of Opposability
This refers to a situation where there is a contentious case before an international
tribunal and one of the parties invoke a rule under its own domestic law in order to
oppose the other party’s claim. It envisages a situation where a rule of Municipal law
which is compatible with International law may be applied before an International
Tribunal. Ordinarily, a municipal law rule cannot be relied on International law
tribunal but this concept presents a situation where the invoked rule of Municipal law
is not only part of International law but also is consistent with it. As a general rule, if
the rule is in accordance with International law, it may be opposed to state. If it is not
in accordance with it, then it may not be opposed to a state.

In the North Sea Continental Shelf Case, Denmark and Netherlands invoked the
provisions of their municipal law as opposed to Germany. They however failed to
prove that the rule was in accordance with International law hence ICJ held that it
could not be held to be binding on Germany. This is because the court explained that
the equidistance principle sought to be relied upon by Denmark and Netherlands had
not developed into a rule of International Customary law because there was no
evidence of opinio juris hence it could not be invoked against Germany in order to
defeat its claim that it was not bound by the provisions 1958 convention.

If Denmark and Netherlands had proven that the Equidistance principle was a
rule of Customary International Law hence binding nations generally or that it
was a municipal rule in all the three states involved in the dispute, they would
have succeeded before the ICJ. However, merely because the rule of domestic
law is held to be non-opposable, it does not affect the validity of the rule in the
domestic legal regime.