International law, Sixth edition
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International Law MALCOLM N. SHAW
ILC, 1949, pp. 286, 289.
18 ICJ Reports, 2002, pp. 303, 430 ff. 19 Ibid., p. 430. But see the view of the Court in the Anglo-Norwegian Fisheries case that the UK as a coastal state greatly interested in North Sea fishing ‘could not have been ignorant’ of a relevant Norwegian decree, despite claiming that Norway’s delimitation system was not known to it: ICJ Reports, 1951, p. 116; 18 ILR, pp. 86, 101. i n t e r nat i o na l l aw a n d m u n i c i pa l l aw 135 Such provisions are reflected in the case-law. In the Alabama Claims arbitration of 1872, the United States objected strenuously when Britain allowed a Confederate ship to sail from Liverpool to prey upon American shipping. It was held that the absence of British legislation necessary to prevent the construction or departure of the vessel could not be brought forward as a defence, and Britain was accordingly liable to pay damages for the depredations caused by the warship in question. 20 In the Polish Nationals in Danzig case, the Court declared that ‘a State cannot adduce as against another State its own constitution with a view to evading obli- gations incumbent upon it under international law or treaties in force’. 21 The International Court, in the Applicability of the Obligation to Arbi- trate case, 22 has underlined ‘the fundamental principle of international law that international law prevails over domestic law’, while Judge Shahabud- deen emphasised in the Lockerbie case 23 that inability under domestic law to act was no defence to non-compliance with an international obligation. This was reinforced in the LaGrand case, 24 where the Court noted that the effect of the US procedural default rule, 25 which was to prevent counsel for the LaGrand brothers from raising the violation by the US of its obli- gations under the Vienna Convention on Consular Relations, 1963 before the US federal courts system, had no impact upon the responsibility of the US for the breach of the convention. 26 The Court underlined this ap- proach in the Avena case, 27 noting that ‘The rights guaranteed under the Vienna Convention are treaty rights which the United States has under- taken to comply with in relation to the individual concerned, irrespective of the due process rights under the United States constitutional law.’ The 20 J. B. Moore, International Arbitrations, New York, 1898, vol. I, pp. 495, 653. See also e.g. the Free Zones case, PCIJ, Series A/B, No. 46, 1932, p. 167; 6 AD, p. 362; the Greco-Bulgarian Communities case, PCIJ, Series B, No. 17, 1930, p. 32; 5 AD, p. 4, and the Nottebohm case, ICJ Reports, 1955, pp. 4, 20–1; 22 ILR, pp. 349, 357–8. 21 PCIJ, Series A/B, No. 44, pp. 21, 24; 6 AD, p. 209. See also the Georges Pinson case, 5 RIAA, p. 327; 4 AD, p. 9. 22 ICJ Reports, 1988, pp. 12, 34; 82 ILR, pp. 225, 252. 23 ICJ Reports, 1992, pp. 3, 32; 94 ILR, pp. 478, 515. See also Westland Helicopters Ltd and AOI 80 ILR, pp. 595, 616. 24 ICJ Reports, 2001, pp. 466, 497–8; 134 ILR, pp. 1, 35–6. 25 This US federal rule of criminal law essentially prevents a claim from being heard be- fore a federal court if it has not been presented to a state court: see ICJ Reports, 2001, pp. 477–8. 26 See also the Advisory Opinion of the Inter-American Court of Human Rights on the Promulgation and Enforcement of Law in Violation of the Convention, 116 ILR, pp. 320, 332–3. 27 ICJ Reports, 2004, pp. 12, 65; 134 ILR, pp. 120, 168. 136 i n t e r nat i o na l l aw Court took a step further in that case, which also concerned the failure to allow foreign prisoners access to the consular officials of their state in breach of the Vienna Convention on Consular Relations, declaring that ‘the remedy to make good these violations should consist in an obliga- tion on the United States to permit review and reconsideration of these nationals’ cases by the United States courts . . . with a view to ascertaining whether in each case the violation of Article 36 committed by the compe- tent authorities caused actual prejudice to the defendant in the process of administration of criminal justice’. 28 By way of contrast, the International Court pointed out in the Elettronica Sicula SpA (ELSI ) case 29 that the fact that an act of a public authority may have been unlawful in municipal law did not necessarily mean that the act in question was unlawful in international law. However, such expressions of the supremacy of international law over municipal law in international tribunals do not mean that the provi- sions of domestic legislation are either irrelevant or unnecessary. 30 On the contrary, the role of internal legal rules is vital to the workings of the international legal machine. One of the ways that it is possible to understand and discover a state’s legal position on a variety of topics im- portant to international law is by examining municipal laws. 31 A country will express its opinion on such vital international matters as the extent of its territorial sea, or the jurisdiction it claims or the conditions for the acquisition of nationality through the medium of its domestic law- making. Thus, it is quite often that in the course of deciding a case before it, an international court will feel the necessity to make a study of relevant pieces of municipal legislation. Indeed, there have been instances, such as the Serbian Loans case of 1929, 32 when the crucial issues turned upon the interpretation of internal law, and the rules of international law in 28 Ibid., p. 60. President Bush then issued an order to the state courts to give effect to the decision of the International Court: see 44 ILM, p. 461 (28 February 2005). The US also withdrew its acceptance of the Optional Protocol to the Vienna Convention on Consular Relations, which had provided for the jurisdiction of the International Court in cases of dispute over the convention. 29 ICJ Reports, 1989, pp. 15, 73–4; 84 ILR, pp. 311, 379–80. See also Compa˜n´ıa de Aguas del Download 7.77 Mb. Do'stlaringiz bilan baham: |
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