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Promulgation and Enforcement of Law in Violation of the Convention
, 116 ILR, pp. 320,
332–3.
27
ICJ Reports, 2004, pp. 12, 65; 134 ILR, pp. 120, 168.
136
i n t e r nat i o na l l aw
Court took a step further in that case, which also concerned the failure
to allow foreign prisoners access to the consular officials of their state in
breach of the Vienna Convention on Consular Relations, declaring that
‘the remedy to make good these violations should consist in an obliga-
tion on the United States to permit review and reconsideration of these
nationals’ cases by the United States courts . . . with a view to ascertaining
whether in each case the violation of Article 36 committed by the compe-
tent authorities caused actual prejudice to the defendant in the process of
administration of criminal justice’.
28
By way of contrast, the International
Court pointed out in the
Elettronica Sicula SpA (ELSI
) case
29
that the fact
that an act of a public authority may have been unlawful in municipal
law did not necessarily mean that the act in question was unlawful in
international law.
However, such expressions of the supremacy of international law over
municipal law in international tribunals do not mean that the provi-
sions of domestic legislation are either irrelevant or unnecessary.
30
On
the contrary, the role of internal legal rules is vital to the workings of
the international legal machine. One of the ways that it is possible to
understand and discover a state’s legal position on a variety of topics im-
portant to international law is by examining municipal laws.
31
A country
will express its opinion on such vital international matters as the extent
of its territorial sea, or the jurisdiction it claims or the conditions for
the acquisition of nationality through the medium of its domestic law-
making. Thus, it is quite often that in the course of deciding a case before
it, an international court will feel the necessity to make a study of relevant
pieces of municipal legislation. Indeed, there have been instances, such
as the
Serbian Loans
case of 1929,
32
when the crucial issues turned upon
the interpretation of internal law, and the rules of international law in
28
Ibid.
, p. 60. President Bush then issued an order to the state courts to give effect to the
decision of the International Court: see 44 ILM, p. 461 (28 February 2005). The US also
withdrew its acceptance of the Optional Protocol to the Vienna Convention on Consular
Relations, which had provided for the jurisdiction of the International Court in cases of
dispute over the convention.
29
ICJ Reports, 1989, pp. 15, 73–4; 84 ILR, pp. 311, 379–80. See also
Compa˜n´ıa de Aguas del
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.
138
i n t e r nat i o na l l aw
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