The truth is that international law is neither a myth on the one hand, nor a panacea on the other, but just
one institution among others which we can use for the building of a better international order.1
Oppenheim. Oppenheim’s International Law, 9th edn, London, 1992, p. 3–115
Shaw, International Law, 5th edn, Cambridge, 2003, pp. 1–246
Higgins, Problems and Process, Oxford, 1994, pp. 1–55
Brownlie, Principles of Public International Law, 6th edn, Oxford, 2003, pp. 3–68
Parry, The Sources and Evidences of International Law, Cambridge, 1965
First let us clear away any misunderstandings about private international law and transnational law.
Private international law/conflict of laws
Private international law is an unfortunate term for what is more properly and accurately called
conflict of laws. That is the body of rules of the domestic law2 of a state which applies when a legal
issue contains a foreign element, and it has to be decided whether a domestic court should apply
foreign law or cede jurisdiction to a foreign court.3 Many of the rules are now found in legislation.
Naturally, over time the domestic rules grow closer as states come to adopt similar solutions to the
same problems, but they remain domestic law. Established in 1893, the Hague Conference on
Private International Law seeks primarily to harmonise domestic rules on
1. J. Brierly, The Law of Nations, 5th edn, Oxford, 1955, Preface, reprinted ibid. in 6th edn, Oxford, 1963.
2. See p. 12 below, including its relationship to international law.
3. Dicey and Morris, Conflict of Laws, 13th edn, London, 2000, p. 3; Cheshire and North, Private
International Law, 13th edn, London, 1999, p. 7; J. Collier, Conflict of Laws, 3rd edn, Cambridge, 2001,
pp. 386–94.
Page 2
conflict of laws, and since 1954 has concluded some thirty-six multilateral treaties.4 These must be
distinguished from treaties that seek to unify or harmonise states’ substantive domestic laws, such as
on carriage by air or sea, or intellectual property.5 UNIDROIT is an international organisation with
fifty-nine member states that seeks to harmonise domestic laws, especially commercial.6 Despite its
name, it is neither a UN body nor a UN specialised agency. But UNCITRAL is a UN body charged
with promoting the harmonisation of international trade law.7
A legal matter can raise issues of both international law and conflict of laws, particularly on
questions of jurisdiction,8 and today the distinction between international law and conflict of laws
can be blurred as more international law, treaties in particular, reaches right down into the internal
legal order, as exemplified by the law of the European Union.9 Nevertheless, it is still vital to
appreciate the distinctions between different categories of law, their purpose and how they develop.
Transnational law
This term seems to have been coined to describe the study of any aspect of law that concerns more
than one state, in particular conflict of laws, comparative law (the study of how the laws of different
states deal with a particular area or issue of domestic law), supranational law (European Union law)
and public international law, particularly in the commercial field. It may bring useful insights into
the development of law, but one should not be led into believing that we are now living in a world
where all laws of whatever type are rapidly converging. Within many states, especially federations
and even in the United Kingdom, there are separate systems of domestic law, and this is likely to
continue for a very long time.
The nature of international law
International law is sometimes called public international law to distinguish it from private
international law, though, as already explained, even this can lead to misunderstandings. Whatever
the connections international law has with other systems of law, it is clearly distinguished by the fact
that it is not the product of any national legal system, but of the states
4. Oppenheim, p. 7. See www.hcch.net.
5. Oppenheim, p. 6, n. 11.
6. See www.unidroit.org.
7. See p. 389 below.
8. See p. 43 below.
9. See p. 466 below.
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(now over 190) that make up our world. In the past, international law was referred to as the Law of
Nations.10 Although it had been developing over many centuries,11 international law as we know it
today is commonly said to have begun properly with the Dutch jurist and diplomat, Grotius (Hugo
de Groot), 1583–1645, and with the Peace of Westphalia 1648.12 That event marked not only the
end of the Thirty Years War but also the end of feudalism (and, with the Reformation, obedience to
the Pope) and the establishment of the modern state with central governmental institutions that could
enforce control over its inhabitants and defend them against other states. But since those states had
to live with each other, there had to be common rules governing their external conduct. Although
rudimentary rules had been developing ever since civilised communities had emerged, from the mid-
seventeenth century they began to develop into what we now recognise as international law.
But is international law really law?
Unfortunately, this question is still being asked, and not only by students. The answer depends on
what is meant by law. Whereas the binding nature of domestic law is not questioned, new students
of international law are confronted with the issue: is international law merely a collection of
principles that a state is free to ignore when it suits it? Whereas every day newspapers report crimes,
it is usually only when a flagrant breach of international law occurs that the media take notice of
international law. This can give a distorted impression of the nature of international law.
International law has no ready sanction for its breach. Because there is no international police force
or army that can immediately step in, international law is often perceived as not really law. Yet the
record of even the most developed domestic legal systems in dealing with crime does not bear close
scrutiny.
Although it is as invidious as comparing apples and oranges, in comparison with domestic crime
states generally do comply rather well with international law. If, as H. L. A. Hart argued,13 law
derives its strength from acceptance by society that its rules are binding, not from its enforceability,
10. See J. Brierly, The Law of Nations, 6th edn, Oxford, 1963. See especially pp. 1 on the origins of
international law.
11. See Shaw, pp. 13–41; A. Nussbaum, A Concise History of the Law of Nations, rev. edn, New York,
1954.
12. 1 CTS pp. , 70, 198 and 319
13. The Concept of Law, Oxford, 1961.
Page 4
then international law is law. The raison d’être of international law is that relations between states
should be governed by common principles and rules. Yet what they are is determined by national
interest, which in turn is often driven by domestic concerns. Those matters on which international
law developed early on included freedom of the high seas and the immunity of diplomats. Both were
vitally important for the increasing international trade, the famous 1654 Treaty of Peace and
Commerce between Queen Christina and Oliver Cromwell epitomising this new reality.14 As we
will see when we look at the sources of international law, its binding force does not come from the
existence of police, courts and prisons. It is based on the consent (express or implied) of states, and
national self-interest: if a state is seen to ignore international law, other states may do the same. The
resulting chaos would not be in the interest of any state. While the language of diplomacy has
changed over the centuries from Latin to French to English, international law has provided a vitally
important and constantly developing bond between states. As this book will show, today in many
areas of international law the rules are well settled. As with most domestic law, it is how the rules
are to be applied to the particular facts that cause most problems.
To look at the question from a more mundane point of view, international law is all too real for
those who have to deal with it daily. Foreign ministries have legal departments. Some are large: the
US State Department has some 150 legal advisers; the UK Foreign and Commonwealth Office
thirty-five, including some seven posted in Brussels, Geneva, New York and The Hague. Their task
is to advise on a host of legal matters that arise in the conduct of foreign affairs. They also have the
conduct of cases involving international law in international, foreign and UK courts and tribunals. If
international law is not law, then they and their legal colleagues in other foreign ministries are
drawing their salaries under false pretences. Which brings one to international lawyers.
International lawyers
Although more students are studying international law, it is not easy for a young lawyer to practise
it. Even in large law firms that have international law departments, the bulk of their work is
commercial arbitration. The involvement of barristers and advocates in international law is usually
14. 1 BSP 691.
Page 5
incidental to their normal work. Most of the distinguished practitioners of international law who
appear before international courts or tribunals are professors of international law. As a rule, foreign
ministry legal departments are staffed by diplomats who have legal training, but who alternate
between legal and political posts. Few have legal advisers who during their careers do little other
than law, the British Diplomatic Service being a prime exception. There are jobs for international
lawyers also in the United Nations and other international organisations.
Sometimes the media will describe a person as an ‘international lawyer’, yet he may at most have
a practice with many foreign clients, and be concerned more with foreign law and conflict of laws.
Yet, when the media is full of stories questioning the lawfulness of a state’s actions, some domestic
lawyers rush to express their opinions, usually critical. They are not always wrong, but usually
display a lack of familiarity with international law, apparently believing that the reading of a
textbook or an (apparently simple) instrument like the UN Charter is enough. The fact that some
textbooks are lucid and make international law accessible, does not mean that a domestic lawyer,
however eminent, can become an expert on it overnight. The difficulties that the judges of the House
of Lords (the UK’s final appeal court) had in grappling with international law in the Pinochet case,
despite having been addressed by several international law experts, are amply demonstrated by their
differing separate opinions.15 Some domestic lawyers have specialised in particular areas of
international law such as aviation, human rights or the environment, without a good grounding in
international law generally. A tax law expert will necessarily have a sound knowledge of contract,
tort and other basic areas of domestic law, without which it would be difficult to advise effectively.
The sources of international law
International law differs from domestic law in that it is not always that easy to find out what the law
is on a particular matter. Domestic law is reasonably certain and found mostly in legislation and
judgments of a hierarchy of courts. In contrast, international law is not so accessible, coherent or
certain. There is no global legislature (the UN General Assembly does not equate to a national
legislature), and no formal hierarchy of international courts and tribunals. As with the (mainly
unwritten) British
15. R. v. Bow Street Stipendiary Magistrate, ex parte Pinochet (No. 3) [2000] 1 AC 147; [1999] 2 WLR
825; [1999] 2 All ER 97; 119 ILR 135.
Page 6
Constitution, an initial pointer to the international law on a given topic is often best found in the
textbooks. They will explain that international law is derived from various sources, which are
authoritatively listed in Article 38(1) of the Statute of the International Court of Justice (annexed to
the UN Charter) as:
1.
international conventions, whether general or particular, establishing rules expressly
recognised by the contracting states;
2. international custom, as evidence of a general practice accepted as law;
3. the general principles of law recognised by civilised nations;
4.
subject to the provisions of Article 59,16 judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination of
rules of law.
Treaties
The reference in (a) to ‘international conventions’ is to bilateral and multilateral treaties. For the
moment it is enough to say that, as with domestic legislation, treaties now play a crucial role in
international law, important areas of customary international law having now been codified in
widely accepted treaties. In consequence, custom and the other sources of international law are no
longer as important as they used to be. But that does not mean that custom is on a lower level than
treaties. There is no formal hierarchy of the sources of international law. As between parties to a
treaty, the treaty binds them. As between a party to a treaty and a non-party, custom will apply,
including custom derived from treaties.17 General principles of law, judgments and the opinions of
writers are of less importance as sources. (The law of treaties is dealt with in some detail in Chapter
5.)
Customary international law
Customary international law – or simply ‘custom’ – must be distinguished from the customary law
that is an important part of some states’ domestic law and deals largely with family matters, land and
suchlike. In international law a rule of custom evolves from the practice of states, and this can
16. Decisions of the Court are binding only on the parties to the case (res judicata).
17. See p. 8 below.
Page 7
take a considerable or a short time. There must be evidence of substantial uniformity of practice by a
substantial number of states. In 1974 the ICJ found that a customary rule (now superseded) that
states had the right to exclusive fishing within a twelve nautical mile zone had emerged.18 State
practice can be expressed in various ways, such as governmental actions in relation to other states,
legislation, diplomatic notes, ministerial and other official statements, government manuals (as on
the law of armed conflict), and certain unanimous or consensus resolutions of the UN General
Assembly. The first such resolution was probably Resolution 95( ) of 11 December 1946 which
affirmed unanimously the principles of international law recognised by the Charter of the Nürnberg
International Military Tribunal and its judgment.
When a state that has an interest in the matter is silent, it will generally be regarded as acquiescing
in the practice. But if the new practice is not consistent with an established customary rule, and a
state is a persistent objector to the new practice, the practice either may not be regarded as evidence
of new custom or the persistent objector may be regarded as having established an exception to the
new customary rule.
But to amount to a new rule of custom, in addition to practice there must also be a general
recognition by states that the practice is settled enough to amount to an obligation binding on states
in international law. This is known as opinio juris (not the opinions of jurists). Sometimes the
recognition will be reflected in a court judgment reached after legal argument based on the extensive
research and writings of international legal scholars. In themselves, neither judicial pronouncements
nor favourable mention in a UN resolution, even when adopted by a large majority, are conclusive as
to the emergence of new custom. 19 But in Nicaragua v. US (Merits) (1986)20 the International
Court of Justice found that the acceptance by states of the Friendly Relations Declaration of the
General Assembly21 constituted opinio juris that the Charter prohibition on the use of force now
also represented custom. There is however a growing tendency for international courts and tribunals,
without making a rigorous examination of the evidence, to find that a customary rule has emerged.
In Tadic the International Criminal Tribunal for the Former
18. Fisheries Jurisdiction (UK v. Iceland; Germany v. Iceland), ICJ Reports (1974), p. 3, at pp. 23–6; 55
ILR 238. For the present law, see p. 318 below.
19. See the Namibia Advisory Opinion, ICJ Reports (1971), p. 6; paras. 87–116; 59 ILR 2; and the
Legality of Nuclear Weapons Advisory Opinion, ICJ Reports (1996), p. 226, paras. 64–73; 110 ILR 163.
20. ICJ Reports (1986), p. 14, paras. 183–94; 76 ILR 1.
21. ILH (1970) 1292.
Yugoslavia ruled that it had jurisdiction over war crimes committed during an internal armed
conflict even though its Statute does not provide for this.22
Page 8
Establishing opinio juris can be difficult and everything will depend on the circumstances. 23 It is
easiest when the purpose of a new multilateral treaty is expressed to be codification of customary
international law. Even if the treaty includes elements of progressive development,24 if it is widely
regarded by states as an authoritative statement of the law, and constantly and widely referred to, it
will soon come to be accepted as reflecting the customary rules, sometimes even before it has
entered into force. This was certainly the case with the Vienna Convention on the Law of Treaties
1969, which even now has only 101 parties.25 Although many provisions of the UN Convention on
the Law of the Sea 1982 (UNCLOS) went beyond mere codification of customary rules in most
respects, the negotiations proceeded on the basis of consensus.26 It was therefore that much easier
during the twelve years before UNCLOS entered into force for most of its provisions to become
accepted as representing customary law.
An accumulation of bilateral treaties on the same subject, such as investment treaties, may in
certain circumstances also be evidence of a customary rule.27
General principles of law recognised by civilized nations28
Compared with domestic law, international law is relatively under-developed and patchy, though in
the last fifty years it has developed several important new specialised areas. International courts and
tribunals have always borrowed concepts from domestic law if they can be applied to relations
between states, and by this means have developed international law by filling gaps and strengthening
weak points. Such concepts are chiefly
22. See the decision of the Appeals Chamber: www.icty.org, Case IT-94-1, paras. 65 et seq; 105 ILR 453.
23. Shaw, pp. 68–72.
24. See n. 26 below.
25. See p. 52 below. See also A. Aust, ‘Limping Treaties: Lessons from Multilateral Treaty-making’ (2003)
NILR 243 at 248–51.
26. See H. Caminos and M. Molitor, ‘Progressive Development of International Law and the Package
Deal’ (1985) AJIL 871–90.
27. See p. 373 below.
28. ‘Civilized’ should not be seen as a demeaning term; the Statute is merely referring to states that have
reached an advanced state of legal development.
legal reasoning and analogies drawn from private law,29 such as good faith and estoppel.
Good faith
Page 9
The obligation to act in good faith is a fundamental principle of international law, and includes
equity.30 Article 2(2) of the UN Charter requires all Members to fulfil their Charter obligations in
good faith. Similarly, the Vienna Convention on the Law of Treaties 1969 requires parties to a treaty
to perform the treaty (Article 26), and to interpret it (Article 31(1)), in good faith.31 The principle is
not restricted to treaties but applies to all international obligations.
Estoppel
Known as preclusion in civil law systems, estoppel has two aspects. A state that has taken a
particular position may be under an obligation to act consistently with it on another occasion. And
when a state has acted to its detriment in relying on a formal declaration by another state, the latter
may be estopped from denying its responsibility for any adverse consequences.32
Norms
Sir Robert Jennings, a former President of the International Court of Justice, once famously said that
he would not recognise a norm if he met one in the street. But, some international lawyers speak of
norms of international law. In English, norm means a standard. Use of the word seems to have been
popularised by Professor Hans Kelsen,33 who saw international law as at the top of the hierarchy of
law. The term is used more by civil lawyers than common lawyers. It may be useful in theoretical
analysis of certain international law issues.34 Unfortunately, it is also used loosely to cover not only
principles and rules but also lex ferenda (see
29. See H. Lauterpacht, ‘Private Law Sources and Analogies of International Law’, in E. Lauterpacht
(ed.), International Law: Being the Collected Papers of Sir Hersch Lauterpacht, Cambridge, 1970–8, vol.
2, pp. 173–212; B. Cheng, General Principles of Law as Applied by International Courts and Tribunals,
Cambridge, 1953, reprinted 1987.
30. Oppenheim, pp. 38 and 44.
31. See further pp. 79 and 90 below, respectively.
32. Oppenheim, pp. 1188–93. See p. 57 below about the possible legal consequences of an MOU.
33. General Theory of Law and State, Harvard, 1945.
34. See for example D. Shelton, ‘International Law and “Relative Normativity”’, in M. Evans (ed.),
International Law, Oxford, 2003, pp. 145–72.
Page 10
below), but without a clear distinction being made between established law and aspirations.35 The
term is very rarely found in treaties.
Judicial decisions
Although, formally, judgments of courts and tribunals, international and domestic, are a subsidiary
source of international law, in practice they may have considerable influence. Because judgments
result from careful consideration of particular facts and legal arguments, they carry persuasive
authority. There are relatively few international courts and tribunals, but thousands of domestic
ones; and most cases involving international law come before domestic courts, often final courts of
appeal.36 The cumulative effect of such decisions on a particular legal point can be evidence of
custom, though domestic courts sometimes get international law wrong.
Teachings of the most highly qualified publicists
The role played by writers on international law is also subsidiary. In the formative days of
international law their views may have been more influential than they are today. Now their main
value depends on the extent to which the books and articles are works of scholarship, that is to say,
based on thorough research into what the law is (lex lata), or may be, rather than comparing the
views of other writers as to what the law ought to be (lex ferenda). A work of rigorous scholarship
will inevitably have more influence on a court, whether domestic or international.
General international law
One sees this phrase from time to time. It is a rather vague reference to the corpus of international
law other than treaty law, and therefore includes those treaty principles or rules that have become
accepted as also customary international law.37
Obligations erga omnes
In Barcelona Traction (Second Phase), the International Court of Justice pointed out that certain
obligations on a state are owed to all states,
35. See ‘Soft law’, p. 11 below.
36. See the cumulative indexes to International Law Reports, published by Cambridge University Press.
37. See p. 6 above. On Statements of international law, see (2003) BYIL 585–6.
Page 11
or erga omnes (for all the world). These include jus cogens and important human rights.38 Certain
treaties have been held to create a status or regime valid erga omnes.39 Examples include those
providing for neutralisation or demilitarisation of a certain territory or area, such as Svalbard or
outer space; for freedom of navigation in international waterways, such as the Suez Canal, or for a
regime for a special area, such as Antarctica.40
Jus cogens
Jus cogens (or a peremptory or absolute rule of general international law) is, in the words of Article
53 of the Vienna Convention on the Law of Treaties 1969:
a norm accepted and recognised by the international community of states as a whole as a norm from which
no derogation is permitted and which can be modified only by a subsequent norm of general international
law having the same character.
The concept was once controversial.41 Now it is more its scope and applicability that is unclear.42
There is no agreement on the criteria for identifying which principles of general international law
have a peremptory character: everything depends on the particular nature of the subject matter.
Perhaps the only generally accepted examples of jus cogens are the prohibitions on the use of force
(as laid down in the UN Charter)43 and on genocide, slavery and torture. This is so even where such
acts are prohibited by treaties that parties can withdraw from.44 It is wrong to assume that all the
provisions of human rights treaties, such as due process, are jus cogens or even rules of customary
international law.45
‘Soft law’
There is no agreement about what is ‘soft law’, or indeed if it really exists.46 Generally, it is used to
describe international instruments that their
38. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory
Opinion, ICJ Reports (2004), paras. 154–9; ILM (2004) 1009.
39. See M. Ragazzi, The Concept of International Obligations Erga Omnes, Oxford, 1997, pp. 24–7; and
p. 354 above.
40. See pp. 354 et seq below for details.
41. See . Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn, Manchester, 1984, pp.
203–41.
42. For an in-depth discussion of jus cogens, see Sinclair, pp. 203–26.
43. See p. 224 below.
44. See p. 101 below.
45. See p. 245 below.
46. See Birnie and Boyle, International Law and the Environment, 2nd edn, Oxford, 2002, pp. 24–7.
Page 12
makers recognise are not treaties, even if they employ imperative language such as ‘shall’, but have
as their purpose the promulgation of ‘norms’ (see above) of general or universal application. Such
non-treaty instruments are typically called Guidelines, Principles, Declarations, Codes of Practice,
Recommendations or Programmes. They are frequently found in the economic, social and
environmental fields. The Rio Declaration on Environment and Development 1992 is one.47
Because the subject matter is usually not yet well developed, or there is a lack of consensus on the
content, it cannot be embodied in a treaty. But the soft law Universal Declaration of Human Rights
1948 has been the source for many universal and regional human rights treaties. Many ‘soft law’
instruments can be regarded as MOUs in the sense that there is no intention that they should be
legally binding.48
Comity
In their international relations states also observe certain rules of comity.49 These are not legally
binding, but rules of politeness, convenience and goodwill, such as the reciprocal provision of free,
but limited, on-street parking for diplomats.50 Later some may become binding rules. Courts may
also rely upon comity as a reason for not accepting jurisdiction in a case, but this seems to be due to
a misunderstanding. The courts are then really applying either a rule of conflict of laws or acting
with restraint in exercising their jurisdiction in accordance with principles of international law.51
Domestic law
The law that applies within a state is described variously as ‘national’, ‘internal’ or ‘municipal’ law,
though most international lawyers now seem to favour ‘domestic law’. That term will be used here,
even though it can sometimes be confused with family law.
For international lawyers, the most important aspect of domestic law is its relationship (interface)
with international law.52 Most judgments on
47. ILM (1992) 876; B&B Docs. 9; and see p. 330 below.
48. See pp. 53, 55 below as to the meaning of MOUs.
49. See Oppenheim, pp. 50–1; Brownlie, p. 28.
50. See Parking Privileges for Diplomats (1971) 70 ILR 396; and E. Denza, Diplomatic Law, 2nd edn,
Oxford, 1998, pp. 164–5.
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.
Page 13
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.53 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,54 but this applies equally to the rest of
international law.55 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.56
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).57 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.58 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.
Page 14
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,59 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.60 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,61 and both will need
some domestic action by states. In short, international rights and obligations still exist on the
international plane.62
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,63 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.
Page 15
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.64 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.65
64. Oppenheim, p. 21.
65. See pp. 196 and 262 below.
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