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The fact that a state is bound by a provision of international law by no means necessarily results in that law thereby being valid within the state, and hence binding on domestic governmental organs and enforceable by the municipal courts. The relationship between the two legal systems is governed, municipally, by the state\'s constitution. Given the variety of the relevant constitutional provisions which exist, generalization about them is hazardous. Broadly speaking, however, it may be said that customary international law is valid within states, provided it does not conflict with municipal law; but that treaties often require legislation for them to be brought into force within the state, and almost invariably so if their operation would modify existing law or affect the private rights of the state\'s citizens. Inasmuch, therefore, as diplomatic law gives diplomats special privileges, it is extremely rare for it to become operative municipally without enabling legislation. See also Act of Anne.
The problem of the relationship between the two systems of law can be particularly acute in federal states, inasmuch as the state\'s treaty-making power is almost always the sole preserve of the central government, but the right to make any required enabling legislation may well lie with the territorial units composing the federation. Germany and the United States are just two such states which often encounter this difficulty. It may result either in the state declining to become a party to a treaty, notwithstanding the wish of the federal government to do so; or in it becoming internationally bound (possibly through the development of customary international law or a European Union directive) but unable fully to implement the obligation. It should be noted, however, that if a state\'s municipal law prevents it from executing an international obligation, that is no defence, internationally, to a claim by the injured state or international organization – although in some quarters it may of course be seen as a mitigating factor. |
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