International law, Sixth edition
The role of municipal rules in international law
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
The role of municipal rules in international law
16 The general rule with regard to the position of municipal law within the international sphere is that a state which has broken a stipulation of international law cannot justify itself by referring to its domestic legal situation. It is no defence to a breach of an international obligation to 14 G. Fitzmaurice, ‘The General Principles of International Law Considered from the Stand- point of the Rule of Law’, 92 HR, 1957 II, pp. 5, 70–80. See also C. Rousseau, Droit International Public, Paris, 1979, pp. 4–16; E. Borchard, ‘The Relations between Interna- tional Law and Municipal Law’, 27 Virginia Law Review, 1940, p. 137; M. S. McDougal, ‘The Impact of International Law upon National Law: A Policy-Orientated Perspective’ in McDougal et al., Studies in World Public Order, New Haven, 1960, p. 157. 15 See further as to relevant theories, Shany, Regulating Jurisdictional Relations, pp. 92 ff. 16 See e.g. C. W. Jenks, The Prospects of International Adjudication, London, 1964, chapter 9; H. Lauterpacht, The Development of International Law by the International Court, London, 1958, and Morgenstern, ‘Judicial Practice’, pp. 43 ff. 134 i n t e r nat i o na l l aw argue that the state acted in such a manner because it was following the dictates of its own municipal laws. The reasons for this inability to put forward internal rules as an excuse to evade international responsibility are obvious. Any other situation would permit international law to be evaded by the simple method of domestic legislation. Accordingly, state practice and decided cases have established this pro- vision and thereby prevented countries involved in international litigation from pleading municipal law as a method of circumventing international law. Article 27 of the Vienna Convention on the Law of Treaties, 1969 lays down that in so far as treaties are concerned, a party may not in- voke the provisions of its internal law as justification for its failure to carry out an international agreement, while article 46(1) provides that a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regard- ing competence to conclude treaties as invalidating its consent. 17 This is so unless the violation of its internal law in question was ‘manifest and concerned a rule of fundamental importance’. Article 46(2) states that such a violation is manifest where it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith. The International Court considered this provision in Cameroon v. Nigeria in the context of Nigeria’s argument that the Maroua Declaration of 1975 signed by the two heads of state was not valid as it had not been ratified. 18 It was noted that article 7(2) of the Vienna Conven- tion provided that heads of state belonged to the group of persons who in virtue of their functions and without having to produce full powers are considered as representing their state. The Court also took the view that ‘there is no general legal obligation for States to keep themselves informed of legislative and constitutional developments in other States which are or may become important for the international relations of these States’. 19 17 Note also article 13 of the Draft Declaration on the Rights and Duties of States, 1949, which provides that every state ‘has the duty to carry out in good faith its obligations 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 this duty’, Yearbook of the Download 7.77 Mb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling