Definitions, sources, and forums

• Author: Gib van Ert
• Pages: 13-40

 Def‌initions, sources, and

forums

International law may be def‌ined as the system of law regulating the

conduct and relations of states. is def‌inition oversimplif‌ies, as any

is bound to do. International law may also regulate relations between

states and other entities, such as internationa l organizations, or nat-

ural or legal persons. To the extent that this is true, however, it is seem-

ingly because states make it true, for example by creating international

organizations a nd endowing them with legal personality or by declar-

ing and recognizing ri ghts in persons. ough the benef‌iciar ies of such

state conduct grow more numerous, the subjects of international law

are still, in t he main, states.

. e state and state organs

In considering the domestic reception of ru les of public internation-

al law, one must disti nguish the state, as it is recognized in inter-

national law, from t he state’s organs, as established in domestic law.

International law regards the state as a unity, consistent with its rec-

 “Nor would it be entire ly accurate to def‌ine publi c international law a s a

system regu lating the af‌fai rs of nations or States. Wh ile this might have bee n

a relatively compre hensive description some de cades ago, it fails to ta ke ac-

count of the increa singly important f‌iel ds of international hu man rights law,

internation al humanitari an law, and internationa l crimina l law, which aspire

to the establi shment of a body of norms applica ble to individuals”: W. Schaba s,

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

ada” ()  Can Bar R ev  at .



     

ognition as a single legal person in international law. International law

binds the state as a whole, without pur porting to bind individual st ate

organs, suc h as its legislatures, mini stries, regulatory bodies, or jud i-

ciary. Yet the acts of such organs are attributa ble to the state as acts of

the state itself for the pur pose of determin ing the state’s responsibil-

ity for breaches of international obligations. Simi larly, the conduct of

persons or entities which are not state organ s but which exercise gov-

ernmental authorit y may be attributed to the state. ese rules of at-

tribution may sometimes seem to apply international law to part icular

state organs or entities d irectly. But they are properly understood as

applying to the state as a whole.

It is t herefore strictly incor rect to say t hat a given statute, regula-

tion, judicial decision, or other domestic legal norm violates internation-

al law. L ikewise it is inaccurate to s ay that Parliament is competent to

violate i nternational law. e act of a state organ cannot itsel f breach

an inter national obligation, because the organ so acting is not subject

to any international obligation it can breach. e obligation is that of

the state of whic h the organ forms part. is is, of course, a rather f‌i ne

distinction, and it can be pedantic to insist upon it. To say “is Act is

contrary to international law” is a quite acceptable shorth and in most

cases, so long as one does not lose sight of the fact that it is only a short-

 J. Crawford, e Interna tional Law Commission’s Art icles on State Responsibilit y:

Introduction, Text and Comment aries (Cambridge: Ca mbridge University Pre ss,

) at .

 See Crawford, ib id., text of and comment ary to art.  of the Inte rnational Law

Commission’s Draft A rticles on Respon sibility of States for Inter nationally

Wrongful Ac ts.

 See Crawford, ibid., text of a nd commentary to ar t. ; see also arts.  –.

 See, for example, L aGrand (Germany v. United States of America), Provi sional

Measures, Order of  March  [] ICJ Re p  at para. : “Wherea s the

internation al responsibilit y of a State is engaged by the act ion of the competent

organs and author ities acting in th at State, whatever they may be; whe reas the

United States should t ake all measures at it s disposal to ensu re that Walter

LaGrand is not ex ecuted pending the f‌in al decision in these proc eedings;

whereas, accordi ng to the information ava ilable to the Court , implementation

of the measures i ndicated in the present Order fa lls within t he jurisdiction of

the Governor of A rizona; whereas t he Government of the United St ates is con-

sequently under t he obligation to transm it the present Order to the said Gov -

ernor; whereas th e Governor of Arizona is und er the obligation to act in conformit y

with the internation al undertakings of the United State s . . .” [emphasis added].

 See Ordon Estate v. Grail []  SCR  at para.  and Cap ital Cities Communi-

cations Inc. v. Canadian Rad io-Television Commission []  SCR  at .