Anthony Aust. Handbook of International Law

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51. See p. 160 below.

52. See generally Oppenheim, pp. 52–86; E. Denza, in M. Evans (ed.), International Law, Oxford, 2003,

pp. 415–42.

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issues of international law are made by domestic courts, and by this means much of international law

has been developed and will continue to do so.

Although international law exists on the

international plane, much of it is now intended to reach deep into the internal legal order of states

and so operate in domestic law. This is most obvious with treaties, many of which have to be

implemented in domestic law to be effective. International law does not allow a state to invoke its

domestic law to justify its failure to perform a treaty,

but this applies equally to the rest of

international law.

The way in which domestic courts deal with an issue of international law is

therefore important. (The place of treaties in domestic law is explained at pp. 79–86 below.)

How customary international law is applied by domestic courts is entirely dependent on the

constitution and law of each state. Most treat customary international law as part of domestic law

and, therefore, unlike foreign law, does not (as in common law systems) have to be proved by expert

evidence, but is usually a matter for legal argument. The chief difference of approach is between

those constitutions that provide that customary international law is supreme law (e.g. Germany), and

those where it is not. In the latter case, if there is a conflict between customary international law and

(1) the constitution, the constitution prevails (e.g. the United States), or (2) legislation, the

legislation prevails (e.g. the United Kingdom and most Commonwealth states). The latter rule

reflects the pure form of dualism.

Subjects of international law

By ‘subjects’, is not meant topics, but those persons or entities to which international law applies. It

obviously applies to states since they have always been a fundamental concept of international law

(see the next chapter).

But can international law apply also to natural persons (individuals) and

legal persons (like corporations)? Such persons are not creations of international law, and are not

regarded by most authorities as subjects of international law to whom international rights (and

obligations) attach directly.

Instead they are generally seen as ‘objects’ of international law.

53. See the consolidated index to the 126 (and counting) volumes of International Law Reports published

by Cambridge University Press.

54. Article 27 of the Vienna Convention on the Law of Treaties (see p. 79 below).

55. Oppenheim, pp. 82–6.

56. See further in respect of treaties, at pp. 81-3 below.

57. Oppenheim, p. 16.

58. For a thought-provoking view, see Higgins, pp. 38–55.

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Although international law increasingly gives rights to, and imposes obligations on, persons, the

notion that they therefore enjoy rights under international law goes too far. Such rights can be

enforced by or against persons only through action by states. A person with a claim against a foreign

state cannot himself take his claim to an international court or tribunal. Either his state has to do it

for him,

or there must be some mechanism established by the two states (usually a treaty) under

which he can himself bring his claim directly before an international tribunal.

Likewise, if under

international criminal law or the law of armed conflict persons are liable to be prosecuted in

domestic or international courts for serious breaches, that can be done only if states have agreed on

the establishment of the necessary international or domestic means to do that,

and both will need

some domestic action by states. In short, international rights and obligations still exist on the

international plane.

An important subject of international law is now also the international organisation (see pp. 196 et

seq below).

National liberation movements

With the development of the law relating to non-self-governing territories and the principle of self-

determination, certain rebel movements – now usually referred to as national liberation movements

(NLMs) – may be in the process of acquiring the status of a subject of international law,

though,

with the notable exception of Palestine, most of the peoples represented by NLMs have now

obtained statehood for their territories. This process was helped by permanent observer status in the

United Nations being accorded to NLMs that were recognised by the Organization of African Unity

(now the African Union) or the League of Arab States, so in practice excluding secessionist

movements.

NGOs

Even if they operate internationally (like Amnesty or Greenpeace), non-governmental organisations

(NGOs) are bodies established under

59. See pp. 183-84 below.

60. For example, under bilateral investment treaties, see p. 373 below, though enforcement of an award

may need to be done in domestic law.

61. See pp. 263 et seq below.

62. See also pp. 251 et seq below on the relationship between international and domestic law.

63. See Oppenheim, pp. 162–4; Shaw, pp. 220–3; Brownlie, pp. 61–2.

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domestic law. Although they have proliferated enormously in the second half of the twentieth

century, and been very active and sometimes influential on the international scene, they are not

subjects of international law.

They are essentially providers of information, lobbyists or pressure

groups, and as such may properly be regarded as so-called non-state actors. The International

Committee of the Red Cross (ICRC) has a rather special status.

64. Oppenheim, p. 21.

65. See pp. 196 and 262 below.

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2 States and recognition

States are, at this moment of history, still at the heart of the international legal system.

Oppenheim. Oppenheim’s International Law, 9th edn, London, 1992, pp. 119–203

Shaw, International Law, 5th edn, Cambridge, 2003, pp. 177–217.

Crawford, The Creation of States in International Law, Oxford, 1979

Brownlie, Principles of Public International Law, 6th edn, Oxford, 2003, pp. 69–101

Although international organisations, non-governmental organisations and individuals (so-called

non-state actors) now participate much more in the international legal order,

this is because states

have given them parts to play. They still have only supporting roles. Only states have international

legal personality to the fullest extent.

In this chapter we will therefore look first at states and then at

some non-state actors, other than international organisations.

Criteria for statehood

The accepted criteria for statehood is that the entity has to demonstrate that it has ‘(a) a permanent

population; (b) defined territory; (c) a government; and (d) capacity to enter into relations with other

states’.

Let us take these in turn.

A permanent population. The population does not have to be homogeneous racially, ethnically,

tribally, religiously, linguistically or otherwise. But it must be a settled population, though the

presence of certain inhabitants who are traditionally nomadic does not matter.

Territory. Size does not matter either. At one time it was thought that countries with a small

territory or population (‘mini- or micro-states’)

1. Higgins, p. 39.

2. Higgins, pp. 46–55.

3. See p. 13 above.

4. Montevideo Convention 1933, 165 LNTS 19, and see Oppenheim, pp. 120–3.

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were not eligible for UN membership. But since 1990, Andorra, Liechtenstein, Monaco, Nauru, San

Marino and Tuvalu have joined the United Nations. Although they include some wealthy countries,

some are very poor. Nor do the land or maritime boundaries have to be defined definitively.

Government. There must be a central government operating as a political body within the law of

the land and in effective control of the territory. But once a state has been established, military

occupation by another state or civil war will not affect that statehood.

Independence in external relations. The government must be sovereign and independent, so that

within its territory it is not subject to the authority of another state. The corollary is that the state thus

has full capacity to enter into relations with other states. The constituent states of a federation, or the

overseas territories of a state,

are not sovereign and do not have international legal personality. The

full title of Switzerland is the Swiss Confederation, but its constitution is that of a federation.

But to become a sovereign state in practice requires recognition by other states.

Recognition of states

There are two competing theories on recognition: either recognition is no more than a formal

acceptance of the existing facts (the declaratory theory), or it is the act of recognition that creates the

new state as an international legal person (the constitutive theory).

But unless an entity is accorded

recognition as a state by a sufficiently large number of states, it cannot realistically claim to be a

state with all the corresponding rights and obligations. For many years some states refused, for

purely political reasons to do with the Cold War, to recognise either North or South Korea,

North

or South Vietnam

or East or West Germany,

although all satisfied the criteria for statehood. Their

admission to the United Nations

5. See p. 29 below.

6. See Oppenheim, pp. 246–8 on confederated states.

7. See Shaw, pp. 368–76 and C. Warbrick in M. Evans (ed.), International Law, Oxford, 2003, pp. 205–67.

8. See Oppenheim, pp. 133–5. Both were admitted to the United Nations only in 1991.

9. See Oppenheim, pp. 141–3. In 1977, the single state of Vietnam was admitted to the United Nations.

10. For the special legal status of Germany, the Federal Republic of Germany and the German Democratic

Republic, see Oppenheim, pp. 135–41.