| I. | Substantive International Law - First Part |
| 3. | INTERNATIONAL LAW AND MUNICIPAL LAW |
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Applicability of the Obligation to Arbitrate
under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947
Advisory Opinion of 26 April 1988
I.C.J.Reports 1988, p. 12
[pp. 34-35] The fact remains however that, as the Court has already
observed, the United States has declared (letter from the Permanent
Representative, 11 March 1988) that its measures against the PLO Observer
Mission were taken "irrespective of any obligations the United States may
have under the [Headquarters] Agreement". If it were necessary to interpret
that statement as intended to refer not only to the substantive obligations laid
down in, for example, sections 11, 12 and 13, but also to the obligation to
arbitrate provided for in section 21, this conclusion would remain intact. It
would be sufficient to recall the fundamental principle of international law
that international law prevails over domestic law. This principle was
endorsed by judicial decision as long ago as the arbitral award of 14 September
1872 in the Alabama case between Great Britain and the United States,
and has frequently been recalled since, for example in the case concerning the
Greco-Bulgarian "Communities" in which the Permanent Court of
International Justice laid it down that
"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 (P.C.I.J., Series
B, No. 17, p. 32).
[p. 42 S.O. Schwebel] It is axiomatic that, on the international
legal plane, national law cannot derogate from international law, that a State
cannot avoid its international responsibility by the enactment of domestic
legislation which conflicts with its international obligations. It is evident
that a party to an agreement containing an obligation to arbitrate any dispute
over its interpretation or application cannot legally avoid that obligation by
denying the existence of a dispute or by maintaining that arbitration of it
would not serve a useful purpose.
