Definitions, sources, and forums

• Author: Gib van Ert
• Pages: 12-36

 Denitions, sources, and

forums

International law may be de ned as the system of law regul ating the

conduct and relations of states. is denition oversimplies, as any

is bound to do. International law may a lso regulate relations bet ween

states and other entities, such as internat ional organizations or natura l

or legal persons. To the extent that this is tr ue, however, it is seeming-

ly because states make it true – for ex ample, by creating international

organizations and endowi ng them with legal persona lity or by declar -

ing and recognizing r ights in persons. ough the beneciaries of such

state conduct grow more numerous, the subjects of international law

are still, in t he main, states.

. e state, state organs, and state responsibility

In considering the domestic reception of ru les of public international

law one must distinguish the state as it is recognized in international

law from the state’s organs as established in domestic law. Internationa l

law regards the state as a unit y, consistent with its recognition as a sin -

 “Nor would it be entire ly accurate to dene public i nternational law as a

system regu lating the aai rs of nations or States. Whi le this might have bee n

a relatively compre hensive description some dec ades ago, it fails to take a c-

count of the increas ingly important el ds of international hu man rights law,

internation al humanitari an law, and internationa l criminal l aw, which aspire

to the establi shment of a body of norms applicab le to individuals”: W Sch abas,

“Twenty-Five Years of Publ ic International L aw at the Supreme Court of Can-

ada” ()  Canadian Bar R eview  at .



2 • Definitions, s ources, and forums



gle legal person in internat ional law. Internationa l law binds the state

as a whole, usually w ithout specically addressing particul ar state or-

gans such as its legisl ature, ministr ies, regulatory bodies, sub -federal

entities, or judicia ry. Yet the acts of such organs are attributable to

the state as acts of the state itself for the pur pose of determining t he

state’s responsibility for breaches of international obligations. Simi-

larly, the conduct of persons or entities that are not state organs but

which exercise govern mental authority may be attributed to the state.

ese rules of attribution may sometimes seem to apply international

law to particul ar state organs or entities direct ly. But they are best

understood as applying to the state as a whole.

It is therefore strictly incorrect to say that a given statute, regu-

lation, judicial decision, or other domestic legal norm violates inter-

national law. Likewi se, it is inaccurate to say that Parlia ment is

competent to violate international law. e act of a state organ cannot

itself breach an international obligation, because the organ so act ing

is not subject to any international obligation it can breach. e obli-

gation is that of the state, of which the organ forms part. is is, of

 J Crawford, e Inter national Law Commission’s Art icles on State Responsibi lity:

Introduction, Text and Comment aries (Cambridge: Cambridge University Press,

) [Crawford] at ; P Saunde rs & R Currie, Kindred’s Inter national Law:

Chiey as Interprete d in Canada, th ed (Toronto: Emond Montgomery Publ ica-

tions Ltd, ) [Kindre d’s] at  .

 “In princip le, obligations under inter national law are bind ing on the State and

on all its organ s, executive, legis lative and judicia l”: F Vallat, International L aw

and the Practitione r (Manchester: Manchester University Press, ) at .

 See Crawford, above note , te xt of and commentary to a rt .

 Ibid, text of and comme ntary to art ; see a lso arts –.

 See, for example, LaGrand (Ger many v United States of America), Provisi onal

Measures, Order of  March , [] ICJ Re p  at para : “Whereas t he

internation al responsibility of a St ate is engaged by the action of t he competent

organs and author ities acting in that St ate, whatever they may be; where as the

United States should t ake all measures at it s disposal to ensure t hat Walter La-

Grand is not execut ed pending the nal d ecision in these proceed ings; whereas,

according to the i nformation availa ble to the Court, implementat ion of the

measures ind icated in the present Order fal ls within the ju risdiction of the Go v-

ernor of Ari zona; whereas the Gover nment of the United States is conse quently

under the obligat ion to transmit the present O rder to the said Governor;

whereas the Governor of Ariz ona is under the obligation to act in confor mity with the

international under takings of the United States. . . .” [emphasi s added].

 Ordon Estate v Grail, []  SCR  at pa ra ; Capital Cities Communications

Inc v Canadian Radio -Television Commiss ion, []  SCR  at .