74
ELETTRONICA SICULA
(JUDGMENT)
Prefect or of the Court of Appeal are equivalent to, or suggest, a conclusion that the requisition was an "arbitrary" action.
124. Yet it must be borne in mind that the fact that an act of a public
authority may have been unlawful in municipal law does not necessarily
mean that that act was unlawful in international law, as a breach of treaty
or otherwise. A finding of the local courts that an act was unlawful may
well be relevant to an argument that it was also arbitrary; but by itself, and
without more, unlawfulness cannot be said to amount to arbitrariness.
It would be absurd if measures later quashed by higher authority or a
superior court could, for that reason, be said to have been arbitrary in the
sense of international law. To identify arbitrariness with mere unlawfulness would be to deprive it of any useful meaning in its own right.
Nor does it follow from a finding by a municipal court that an act was
unjustified, or unreasonable, or arbitrary, that that act is necessarily to
be classed as arbitrary in international law, though the qualification
given to the impugned act by a municipal authority may be a valuable
indication.
125. The principal passage from the decision of the Prefect which is
relevant here has already been quoted (paragraph 75 above), but it is convenient to set it out again here :
"Nonv'ha dubbio che anche sepossono considerarsi, in linea del tutto
teorica, sussistenti, nella fattispecie, gli estremi della grave necessità
pubblica e della contingibilità ed urgenza che determinarono I'adozione
delprovvedimento, ilfine cui tendeva la requisizione non poteva trovare
pratica realizzazione con ilprovvedimento stesso, tanto è ver0 che nessuna ripresa di attività dell'azienda vi è stata a seguito della requisizione, nè avrebbe potuto esserci. Manca, pertanto, ne1 provvedimento,
genericamente, la causa giuridica chepossa giustificarlo e renderlo operante. "
The differing translations offered by the Parties of the sentence upon
which the Applicant places considerable reliance are set out in paragraph 123 above. In the Chamber's translation, the passage reads :
"There is no doubt that, even though, from the purely theoretical
standpoint, the conditions of grave public necessity and of unforeseen urgency warranting adoption of the measure may be considered
to exist in the case in point, the intended purpose of the requisition
could not in practice be achieved by the order itself, since in fact there
was no resumption of the company's activity following the requisition, nor could there have been such resumption. The order therefore