International law, Sixth edition
International law before municipal courts
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International Law MALCOLM N. SHAW
International law before municipal courts
36 The problem of the role of international law within the municipal law system is, however, rather more complicated than the position discussed above, and there have been a number of different approaches to it. States are, of course, under a general obligation to act in conformity with the rules of international law and will bear responsibility for breaches of it, whether committed by the legislative, executive or judicial organs and irrespective of domestic law. 37 Further, international treaties may impose requirements of domestic legislation upon states parties, 38 while binding Security Council resolutions may similarly require that states take par- ticular action within their jurisdictions. 39 There is indeed a clear trend towards the increasing penetration of international legal rules within do- mestic systems coupled with the exercise of an ever-wider jurisdiction with regard to matters having an international dimension by domestic courts. This has led to a blurring of the distinction between the two previ- ously maintained autonomous zones of international and domestic law, a re-evaluation of the role of international legal rules and a greater prepared- ness by domestic tribunals to analyse the actions of their governments in the light of international law. 40 Further, domestic courts may often have to determine the meaning of an international rule that is relevant for a case before them 41 or to seek to resolve conflicts between international rules, 36 See e.g. Morgenstern, ‘Judicial Practice’, pp. 48–66, and Conforti, International Law. See also H. Mosler, ‘L’Application du Droit International Public par les Tribunaux Nationaux’, 91 HR, 1957 I, p. 619; W. Wenger, ‘R´eflexions sur l’Application du Droit International Public par les Tribunaux Internes’, 72 Revue G´en´erale de Droit International Public, 1968, p. 921; E. Benveniste, ‘Judges and Foreign Affairs: A Comment on the Institut de Droit International’s Resolution on “The Activities of National Courts and the International Relations of their State”’, 5 EJIL, 1994, p. 423. 37 See e.g. the Exchange of Greek and Turkish Populations case, PCIJ, Series B, No. 10, p. 20, and the Finnish Ships Arbitration, 3 RIAA, p. 1484. See further below, chapter 14. 38 See e.g. as to requirements imposed by anti-terrorist conventions, below, chapter 12, p. 673. See also the decision of Trial Chamber II in the Furundˇzija case, 121 ILR, pp. 218, 248–9. 39 See as to the effect of counter-terrorism and weapons of mass destruction proliferation measures taken by the Security Council, below chapter 22, pp. 1208, 1210 and 1240. 40 See e.g. Shany, Regulating Jurisdictional Relations; A. Nollkaemper, ‘Internationally Wrong- ful Acts in Domestic Courts’, 101 AJIL, 2007, p. 760, and New Perspectives on the Divide Between National and International Law (eds. A. Nollkaemper and J. E. Nijman), Oxford, 2007. See also Conforti, International Law. 41 For example, the concept of jurisdiction as laid down in the European Convention on Human Rights: see Al-Skeini v. Secretary of State for Defence [2007] UKHL 26; 133 ILR, p. 693. 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 139 such as that between state immunity and the prohibition of torture 42 and that between treaty rules of human rights and binding Security Council resolutions. 43 In this section, the approach adopted by municipal courts will be noted. We shall look first at the attitudes adopted by the British courts, and then proceed to note the views taken by the United States and other countries. 44 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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