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
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