International law, Sixth edition
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International Law MALCOLM N. SHAW
Aconquija v. Argentina 41 ILM, 2002, pp. 1135, 1154.
30 See e.g. Jenks, Prospects, pp. 547–603, and K. Marek, Droit International et Droit Interne, Paris, 1961. See also Brownlie, Principles, pp. 36–40. 31 See e.g. the Anglo-Iranian Oil Co. case, ICJ Reports, 1952, p. 93; 19 ILR, p. 507. 32 PCIJ, Series A, No. 20; 5 AD, p. 466. See also the Brazilian Loans case, PCIJ, Series A, No. 21. 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 137 a strict sense were not at issue. Further, a court may turn to municipal law concepts where this is necessary in the circumstances. 33 However, it is clear that caution is necessary where an international court or tribunal is considering concepts of national law in the absence of an express or implied requirement so to do and no automatic transposition should occur. 34 In addition to the role of municipal law in revealing the legal position of the state on topics of international importance, the rules of municipal law can be utilised as evidence of compliance or non-compliance with inter- national obligations. This was emphasised in the Certain German Interests in Polish Upper Silesia case, where the Permanent Court of International Justice declared that: From the standpoint of International Law and of the Court, which is its organ, municipal laws are merely facts which express the will and con- stitute the activities of States, in the same manner as do legal decisions or administrative measures. The Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Court’s giving judgment on the question whether or not, in applying that law, Poland is acting in conformity with its obligations towards Germany under the Geneva Convention. 35 Nevertheless, and despite the many functions that municipal law rules perform within the sphere of international law, the point must be em- phasised that the presence or absence of a particular provision within the internal legal structure of a state, including its constitution if there is one, cannot be applied to evade an international obligation. Any other solution would render the operations of international law rather precarious. 33 See e.g. the Barcelona Traction case concerning the nature of a limited liability company, ICJ Reports, 1970, p. 3; 46 ILR, p. 178. 34 See e.g. the Exchange of Greek and Turkish Populations case, PCIJ, Series B, No. 10, pp. 19– 21; 3 AD, p. 378. See also the Separate Opinion of Judge McNair in the South West Africa case, ICJ Reports, 1950, p. 148; 17 ILR, p. 47, noting that private law institutions could not be imported into international law ‘lock, stock and barrel’; the Separate Opinion of Judge Fitzmaurice in the Barcelona Traction case, ICJ Reports, 1970, pp. 3, 66–7; 46 ILR, pp. 178, 240–1, and the Separate and Dissenting Opinion of President Cassese in the Erdemovi´c case, 111 ILR, pp. 298, 387 ff. 35 PCIJ, Series A, No. 7, p. 19; 3 AD, p. 5. See also the Saiga (No. 2) case before the International Tribunal for the Law of the Sea, 120 ILR, pp. 143, 188, and Benin v. Niger, ICJ Reports, 2005, pp. 90, 125 and 148. For criticism, see e.g. Brownlie, Principles, pp. 38–40. |
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