State responsibility 37 tional judicial decisions leave no doubt on that subject. In particular, PCIJ expressly recognized the principle in its first judgment, in the S.S. “Wimbledon” case. The Court rejected the argument of the German Government that the passage of the ship through the Kiel Canal would have constituted a violation of the German neutrality orders, observing that: 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 … 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.86 a neutrality order, issued by an individual State, could not prevail over the provisions of the Treaty of Peace. ... under Article 380 of the Treaty of Versailles, it was [Germany’s] definite duty to allow [the passage of the Wimbledon through the Kiel Canal]. She could not advance her neutrality orders against the obligations which she had accepted under this Article.77 The principle has also been applied by numerous arbitral tribunals.87 The principle was reaffirmed many times: it is a generally accepted principle of international law that in the relations between Powers who are contracting Parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty;78 ... it is certain that France cannot rely on her own legislation to limit the scope of her international obligations;79 ... a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force.80 A different facet of the same principle was also affirmed in the advisory opinions on Exchange of Greek and Turkish Populations81 and Jurisdiction of the Courts of Danzig.82 (4) ICJ has often referred to and applied the principle.83 For example, in the Reparation for Injuries case, it noted that “[a]s the claim is based on the breach of an international obligation on the part of the Member held responsible … the Member cannot contend that this obligation is governed by municipal law”.84 In the ELSI case, a Chamber of the Court emphasized this rule, stating that: Compliance with municipal law and compliance with the provisions of a treaty are different questions. What is a breach of treaty may be lawful in the municipal law and what is unlawful in the municipal law may be wholly innocent of violation of a treaty provision. Even had the Prefect held the requisition to be entirely justified in Italian law, this would not exclude the possibility that it was a violation of the FCN Treaty.85 Conversely, as the Chamber explained: 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 77 S.S. “Wimbledon” (see footnote 34 above), pp. 29–30. Greco-Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J., Series B, No. 17, p. 32. 79 Free Zones of Upper Savoy and the District of Gex, Order of 6 December 1930, P.C.I.J., Series A, No. 24, p. 12; and ibid., Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 96, at p. 167. 80 Treatment of Polish Nationals (see footnote 75 above), p. 24. 81 Exchange of Greek and Turkish Populations, Advisory Opinion, 1925, P.C.I.J., Series B, No. 10, p. 20. 82 Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928, P.C.I.J., Series B, No. 15, pp. 26–27. See also the observations of Lord Finlay in Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J., Series B, No. 7, p. 26. 83 See Fisheries, Judgment, I.C.J. Reports 1951, p. 116, at p. 132; Nottebohm, Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 111, at p. 123; Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, I.C.J. Reports 1958, p. 55, at p. 67; and Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 12, at pp. 34–35, para. 57. 84 Reparation for Injuries (see footnote 38 above), at p. 180. 85 Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 15, at p. 51, para. 73. 78 (5) The principle was expressly endorsed in the work undertaken under the auspices of the League of Nations on the codification of State responsibility,88 as well as in the work undertaken under the auspices of the United Nations on the codification of the rights and duties of States and the law of treaties. The Commission’s draft Declaration on Rights and Duties of States, article 13, provided that: Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.89 (6) Similarly this principle was endorsed in the 1969 Vienna Convention, article 27 of which provides that: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.90 86 Ibid., p. 74, para. 124. See, e.g., the Geneva Arbitration (the “Alabama” case), in Moore, History and Digest, vol. IV, p. 4144, at pp. 4156 and 4157 (1872); Norwegian Shipowners’ Claims (Norway v. United States of America), UNRIAA, vol. I (Sales No. 1948.V.2), p. 307, at p. 331 (1922); AguilarAmory and Royal Bank of Canada Claims (Tinoco case) (Great Britain v. Costa Rica), ibid., p. 369, at p. 386 (1923); Shufeldt Claim, ibid., vol. II (Sales No. 1949.V.1), p. 1079, at p. 1098 (“it is a settled principle of international law that a sovereign can not be permitted to set up one of his own municipal laws as a bar to a claim by a sovereign for a wrong done to the latter’s subject”) (1930); Wollemborg Case, ibid., vol. XIV (Sales No. 65.V.4), p. 283, at p. 289 (1956); and Flegenheimer, ibid., p. 327, at p. 360 (1958). 88 In point I of the request for information on State responsibility sent to States by the Preparatory Committee for the 1930 Hague Conference it was stated: “In particular, a State cannot escape its responsibility under international law, if such responsibility exists, by appealing to the provisions of its municipal law.” In their replies, States agreed expressly or implicitly with this principle (see League of Nations, Conference for the Codification of International Law, Bases of Discussion for the Conference drawn up by the Preparatory Committee, vol. III: Responsibility of States for Damage caused in their Territory to the Person or Property of Foreigners (document C.75.M.69.1929.V), p. 16). During the debate at the 1930 Hague Conference, States expressed general approval of the idea embodied in point I and the Third Committee of the Conference adopted article 5 to the effect that “A State cannot avoid international responsibility by invoking the state of its municipal law” (document C.351(c) M.145(c).1930.V; reproduced in Yearbook ... 1956, vol. II, p. 225, document A/CN.4/96, annex 3). 89 See General Assembly resolution 375 (IV) of 6 December 1949, annex. For the debate in the Commission, see Yearbook ... 1949, pp. 105–106, 150 and 171. For the debate in the Assembly, see Official Records of the General Assembly, Fourth Session, Sixth Committee, 168th–173rd meetings, 18–25 October 1949; 175th–183rd meetings, 27 October–3 November 1949; and ibid., Fourth Session, Plenary Meetings, 270th meeting, 6 December 1949. 90 Article 46 of the Convention provides for the invocation of provisions of internal law regarding competence to conclude treaties in limited circumstances, viz., where the violation of such provisions “was manifest and concerned a rule of … internal law of fundamental importance”. 87