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of International Law and those of domestic origin should have the same Once the Court has arrived at the conclusion that it is necessary to ap-
biding force for all organs and nationals of the countries concerned. By ply the municipal law of a particular country,'there seems no doubt that
concluding an international agreement a governing authority under- it must seek to apply it as it would be applied in that country. It would
takes, if necessary, to bring its domestic legislation into line with the in- not be applying the municipal law of a country if it were to apply it in a
ternational commitments it has assumed. On the other hand, by pro- manner different,from that in which that law would be applied in the
mulgating a law clearly contrary to International Law, the government country in which it is in force.
concerned commits a violation of International Law, for which the State It follows that the Court must pay the utmost regard to the decisions
concerned is responsible under International Law. . . . of the municipal courts of a country, for it is with the aid of their
Therefore, International Law and National Law must not in their very jurisprudence that it will be enabled to decide what are the rules which,
nature either contradict 'each other or have primacy one over the in actual fact, are applied in the country the law of which is recognized as
other. 18 applicable in a given case. If the Court were obliged to disregard the
decisions of municipal courts, the result would be that it might in certain
d. In many cases, international tribunals have awarded circumstances apply rules other than those actually applied; this would
damages because a state's courts have disregarded or seem to be contrary to the whole theory on which the application of mu-
misapplied international law. For example, after the nicipal law is based.
American Civil War, an arbitral tribunal awarded Of course, the Court will endeavour to make a just appreciation of the
damages to Great Britain for the detention or condemna- jurisprudence of municipal courts. If this is uncertain or divided, it will
tion in the United States of six British vessels as prizes rest with the Court to select the interpretation which it considers most in
conformity with the law. But to compel the Court to disregard that
during the Civil War. It held that, in these cases, the con- jurisprudence would not be in conformity with its function when apply-
demnation or detention was contrary to international law, ing municipal law. As the Court has already observed in the judgment in
although it had been upheld by the Supreme Court as law- the case of the Serbian loans, it would be a most delicate matter to do so,
ful. 19 It should be further noted that, in such cases, the in a,caseconcerning public policy-+ conception the definition of which in
international tribunal normally has no power to reverse or any particular country is largely dependent on the opinion prevailing at
any given time in such country itself--and in a case where no relevant
set aside the judgment of the municipal court, which may provisions directly relate to the question at issue. Such are the reasons
continue to have legal effect (e.g., with respect to passage according to which the Court considers that it must construe Article VI
of title to property). The international tribunal, however, of the Special Agreement to mean that, while the Court is authorized to
will award damages to the aggrieved state. depart from the jurisprudence of the municipal courts, it remains en-
tirely free to decide that there is no ground for attributing to the munici-
e. Although international law is normally controlling pal law a meaning other than that attributed to it by that jurisprudence.
on the international level, questions of municipal law may Exceptionally, however, an international tribunal may reject an in-
arise in disputes between states, and international tri- terpretation of a state's law by a court of that state if it is obviously
bunals may find it necessary to interpret such law. This fraudulent or erroneous. 21
may happen, for example, in disputes arising out of 2-4. Summary. a. The place of international law within a
alleged breaches of state contracts. In the Serbian Loans particular municipal legal system, though both giving rise
and Brazilian Loans cases, 20 the Permanent Court of In- to intricate domestic legal problems and adding to or sub-
ternational Justice had to determine the meaning and tracting from the effectiveness of international law, does
effect of French legislation governing payments of debts in not affect the international rights and obligations of the
gold or at gold value. In construing this legislation, the state. These rights and responsibilities are founded in in-
Court attached controlling weight to the manner in which ternational law. Domestic constitutions and other state
it had been applied by the French courts, saying in the lat- laws are, alone, incapable of adding to or subtracting from
ter case: the existing norms of international jurisprudence. This is
Though bound to apply municipal law when circumstances so require, both logical and just. International law is not foreign law.
the Court, which is a tribunal of international law, and which, in this Far more being a legal system imposed upon states against
capacity, is deemed itself to know what this law is, is not obliged also to their will, it consists of rules and regulations designed both
know the municipal law of the various countries. All that can be said in
this respect is that the Court may possibly be obliged to obtain to protect and to promote the interests of all members of
knowledge regarding the municipal law which has to be applied. And the world community.
thls it must do, either by means of evidence furnished it by the Parties b. It is upon the question of membership in the interna-
or by means of any researches which the Court may think fit to under- tional community that attention must now be focused. If,
take or to cause to be undertaken.
in fact, states are the only true subjects of public interna-
18. Academy of Sciences of The U.S.S.R., Institute of State and tional law, it is essential that the military attorney fully un-
Law, International Law 15 (Ogden trans]. 1961). derstand the characteristic~ of these principal participants
19. Alabama Claims (United States v. Great Britain), 3 J. Moore, in the international legal system.
International Arbitralions 3209-10 (1898); 4 J. Moore, at 3902, 3911,
3928, 3935, 3950 (1898). 21. Id. at 121, 22. See generally A. Freeman, The International
20. Serbian Loans and Brazilian Loans Cases, [I9291 P.C.I.J. 5, Responsibility of States for Denial of Justice 342-354 (1938); C. Jenks,
40-47, 93, 120-125. The Prospects of International Adjudication 547-603 (1 964).