particular that ‘the relief which article 103 of the Charter may give the
Security Council in case of conflict between one of its decisions and an
operative treaty obligation cannot – as a matter of simple hierarchy of
norms – extend to a conflict between a Security Council resolution and
jus cogens
’.
240
See e.g. Sinclair,
Vienna Convention
, pp. 218–24, and Akehurst, ‘Hierarchy’.
241
See
Yearbook of the ILC
, 1966, vol. II, pp. 91–2.
242
One that involves a gross or systematic failure by the responsible state to fulfil the obliga-
tion, article 40(2). See also article 50(d).
243
See e.g. Judges Padilla Nervo, Tanaka and Sørensen in the
North Sea Continental Shelf
cases, ICJ Reports, 1969, pp. 3, 97, 182 and 248; 41 ILR, p. 29. See also General Comment
No. 24 (52) of the UN Human Rights Committee, CCPR/C/21/Rev.1/Add.6.
244
See e.g. Cassese,
International Law
, pp. 105 ff, citing the Dissenting Opinion of Judge Wald
in
Princz
v.
Federal Republic of Germany
, a decision of the US Court of Appeals, 1994, 103
ILR, p. 618, but see the
Al-Adsani
case, European Court of Human Rights, Judgment of
21 November 2001; 123 ILR, p. 24.
245
ICJ Reports, 1993, pp. 325, 440; 95 ILR, pp. 43, 158. See also the decision of the House
of Lords in the
Al-Jedda
case, [2007] UKHL 58 concerning the priority of article 103
obligations (here Security Council resolutions) over article 5 of the European Convention
on Human Rights.
128
i n t e r nat i o na l l aw
Suggestions for further reading
M. Akehurst, ‘Custom as a Source of International Law’, 47 BYIL, 1974–5, p. 1
A. Boyle and C. Chinkin,
The Making of International Law
, Oxford, 2007
B. Cheng,
General Principles of Law as Applied by International Courts and Tribunals
,
London, 1953
C. Parry,
The Sources and Evidences of International Law
, Cambridge, 1965
A. Pellet, ‘Article 38’ in
The Statute of the International Court of Justice: A Commen-
tary
(eds. A. Zimmermann, C. Tomuschat and K. Oellers-Frahm), Oxford,
2006, p. 677
P. Weil, ‘Towards Relative Normativity in International Law?’, 77 AJIL, 1983, p. 413
4
International law and municipal law
The role of the state in the modern world is a complex one. Accord-
ing to legal theory, each state is sovereign and equal.
1
In reality, with
the phenomenal growth in communications and consciousness, and with
the constant reminder of global rivalries, not even the most powerful
of states can be entirely sovereign. Interdependence and the close-knit
character of contemporary international commercial and political soci-
ety ensures that virtually any action of a state could well have profound
repercussions upon the system as a whole and the decisions under consid-
eration by other states. This has led to an increasing interpenetration of
1
See generally
Oppenheim’s International Law
(eds. R. Y. Jennings and A. D. Watts), 9th edn,
London, 1992, vol. I, p. 52; L. Reydams,
Universal Jurisdiction: International and Munici-
pal Legal Perspectives
, Oxford, 2004; Y. Shany,
Regulating Jurisdictional Relations Between
National and International Courts
, Oxford, 2007; J. W. Verzijl,
International Law in Histor-
ical Perspective
, Leiden, 1968, vol. I, p. 90; R. A. Falk,
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