Definitions, sources, and forums

AuthorGib van Ert
Def‌initions, sources, and
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 .

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