State Responsibility

State Responsibility is a fundamental principle of Public International Law under which a State incurs international legal responsibility when conduct attributable to that State constitutes a breach of an international obligation. The law of State responsibility determines when a State is responsible for internationally wrongful acts and the legal consequences that follow from such responsibility.

The principal framework is contained in the Articles on Responsibility of States for Internationally Wrongful Acts, 2001 (ARSIWA), adopted by the International Law Commission (ILC). Although the Articles have not been adopted as a comprehensive treaty, many of their provisions reflect customary International Law.

Meaning of State Responsibility

A State becomes internationally responsible when:

Conduct attributable to a State

Breach of an international obligation

↓

Internationally wrongful act

↓

State responsibility

The responsibility is therefore based on the international legal character of the conduct, rather than simply on whether the conduct violates the State’s domestic law.

Internationally Wrongful Act

Under Article 2 ARSIWA, there is an internationally wrongful act of a State when conduct consisting of an action or omission:

• is attributable to the State under International Law; and
• constitutes a breach of an international obligation of that State.

Both elements are essential.

Two Essential Elements

1. Attribution

The conduct must be legally attributable to the State.

2. Breach

The conduct must constitute a violation of an international obligation binding upon the State.

Therefore:

Attribution + Breach = Internationally Wrongful Act

Action and Omission

State responsibility may arise from either:

Positive Act

The State does something that violates an international obligation.

Omission

The State fails to do something required by an international obligation.

For example, failure to protect persons where International Law imposes such an obligation may potentially constitute an internationally wrongful omission.

Attribution

Attribution is the process of determining whether particular conduct is legally regarded as conduct of the State.

The most important attribution rules are contained in Articles 4–11 ARSIWA.

Article 4: Conduct of State Organs

The conduct of any State organ is considered an act of the State under International Law.

This applies whether the organ exercises:

• legislative functions;
• executive functions;
• judicial functions;
• other governmental functions.

The internal status of the organ does not prevent attribution.

Thus:

State organ

↓

Conduct

↓

Attributable to State

Article 5: Entities Exercising Governmental Authority

Conduct of an entity that is not formally a State organ may nevertheless be attributable to the State where:

• the entity is empowered by the State’s law to exercise elements of governmental authority; and
• it acts in that capacity in the particular instance.

This can cover certain:

• public corporations;
• statutory bodies;
• delegated governmental entities.

Article 6: Organs Placed at Disposal of Another State

Where an organ of one State is placed at the disposal of another State and exercises governmental authority of the latter State, its conduct may be attributable to the State exercising that authority.

The actual legal relationship and functions performed are important.

Article 7: Excess of Authority

Conduct of a State organ or authorised entity may remain attributable to the State even where the organ:

• exceeds its authority; or
• acts contrary to instructions.

This is known as the principle concerning ultra vires conduct.

Therefore:

State organ

↓

Acts beyond authority

↓

Conduct may still be attributable to State

The State cannot automatically escape responsibility merely because its official violated domestic instructions.

Article 8: Conduct Directed or Controlled by a State

Conduct of a person or group may be attributable to a State where that person or group is acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

The degree of control required has been considered extensively in international jurisprudence.

Article 9: Conduct in Absence or Default of Official Authorities

Conduct may be attributable to a State where persons or groups exercise elements of governmental authority:

• in the absence or default of official authorities; and
• in circumstances calling for the exercise of those elements of authority.

Article 10: Insurrectional or Other Movements

The conduct of an insurrectional movement may become attributable to the State if the movement:

• becomes the new government of the State; or
• succeeds in establishing a new State in part of the territory of a pre-existing State.

This reflects the continuity of responsibility in particular circumstances.

Article 11: Conduct Acknowledged and Adopted by a State

Conduct that would not otherwise be attributable to a State may nevertheless become attributable if the State:

• acknowledges and adopts the conduct as its own.

This is an important residual rule of attribution.

Breach of an International Obligation

Attribution alone is not sufficient.

There must also be a breach of an international obligation.

Under Article 12 ARSIWA, there is a breach when an act of a State is not in conformity with what is required of it by that obligation, regardless of its origin or character.

The obligation may arise from:

• treaty;
• customary International Law;
• other applicable sources of international obligations.

Temporal Element

Under Article 13, an act does not constitute a breach unless the State is bound by the obligation at the time the act occurs.

Therefore:

Obligation exists

↓

State is legally bound

↓

Conduct violates obligation

↓

Breach

Continuing Breach

Some internationally wrongful acts are not completed at a single moment.

A breach may be continuing where the wrongful conduct continues over a period of time.

For example:

Wrongful conduct begins

↓

Conduct continues

↓

Breach continues

until the wrongful conduct ends.

Composite Acts

Under Article 15, a breach may also arise from a series of actions or omissions that collectively constitute wrongful conduct.

This is relevant where an obligation is violated through cumulative conduct rather than one isolated act.

Circumstances Precluding Wrongfulness

Even where conduct appears to violate an international obligation, certain circumstances may preclude wrongfulness.

These are principally contained in Articles 20–27 ARSIWA.

They include:

• consent;
• self-defence;
• countermeasures;
• force majeure;
• distress;
• necessity.

Consent

Under Article 20, valid consent by a State to the commission of a particular act by another State precludes wrongfulness in relation to that State to the extent that the conduct remains within the limits of that consent.

Consent must be:

• valid;
• given by the State;
• applicable to the particular conduct.

Self-Defence

Under Article 21, the wrongfulness of an act is precluded where the act constitutes a lawful measure of self-defence taken in conformity with the UN Charter.

Thus, self-defence does not provide an unlimited justification for otherwise wrongful conduct.

Countermeasures

Article 22 recognises that the wrongfulness of certain conduct may be precluded where the conduct constitutes a lawful countermeasure taken in accordance with the rules governing State responsibility.

Countermeasures are subject to strict requirements.

They are not equivalent to punishment or retaliation.

Force Majeure

Under Article 23, force majeure may preclude wrongfulness where:

• an irresistible force or unforeseen event beyond the State’s control occurs;
• it makes performance of the obligation materially impossible.

Force majeure cannot be invoked where:

• the situation results from the State’s own conduct; or
• the State assumed the risk of the situation occurring.

Distress

Under Article 24, distress may apply where the author of the act has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.

It is a narrowly defined circumstance.

Necessity

Article 25 contains the doctrine of necessity.

Necessity may be invoked only where:

• the act is the only way for the State to safeguard an essential interest;
• that interest is threatened by a grave and imminent peril;
• the act does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.

Necessity cannot be invoked where:

• the international obligation excludes the possibility of invoking necessity; or
• the State contributed to the situation of necessity.

Article 26: Jus Cogens

Article 26 makes clear that the circumstances precluding wrongfulness do not permit a State to justify conduct that violates an obligation arising under a peremptory norm of general International Law (jus cogens).

Thus:

Jus cogens obligation

↓

No defence under ordinary circumstances precluding wrongfulness

Consequences of State Responsibility

Once an internationally wrongful act is established and no applicable circumstance precludes wrongfulness, the responsible State incurs legal consequences.

The principal consequences are contained in Articles 28–39 ARSIWA.

The responsible State is under obligations concerning:

• cessation;
• assurances and guarantees of non-repetition where appropriate;
• reparation.

Cessation

Under Article 30, the responsible State is required to:

• cease the wrongful conduct if it is continuing; and
• offer appropriate assurances and guarantees of non-repetition where circumstances so require.

Therefore:

Wrongful act continues

↓

State must cease conduct

↓

Future repetition may require assurances

Reparation

Article 31 establishes the fundamental principle of full reparation.

The responsible State must make full reparation for the injury caused by the internationally wrongful act.

Injury includes:

• material damage;
• moral damage.

The purpose of reparation is generally to eliminate, as far as possible, the consequences of the wrongful act.

Forms of Reparation

The principal forms are:

Restitution

Article 35

Restitution seeks to restore the situation that existed before the wrongful act.

Compensation

Article 36

Compensation may be required for financially assessable damage where restitution does not provide full reparation.

Satisfaction

Article 37

Satisfaction may address injury that cannot be adequately repaired through restitution or compensation.

It may take forms such as:

• acknowledgement of the breach;
• expression of regret;
• formal apology;
• other appropriate forms.

Restitution

Restitution is generally the preferred form where it is:

• not materially impossible; and
• not disproportionate to the benefit derived from restitution compared with compensation.

The basic principle is:

Wrongful situation

↓

Restore previous lawful position

↓

Restitution

Compensation

Compensation covers financially assessable damage to the extent that restitution does not fully repair the injury.

It may include:

• actual financial loss;
• loss caused by the wrongful conduct;
• other legally recoverable material damage.

Satisfaction

Satisfaction addresses injury that cannot be fully repaired through restitution or compensation.

It may involve:

• acknowledgement of breach;
• declaration of wrongfulness;
• apology;
• appropriate formal measures.

However, satisfaction must not be disproportionate to the injury and cannot take a form humiliating to the responsible State.

Reparation and Chorzów Factory Principle

A foundational principle of international reparation was expressed by the Permanent Court of International Justice in the Chorzów Factory case (1928).

The principle is that reparation should, as far as possible, wipe out the consequences of the illegal act and re-establish the situation that would likely have existed had the act not been committed.

The principle strongly influenced the modern law of State responsibility.

Serious Breaches of Peremptory Norms

Articles 40–41 ARSIWA deal with serious breaches of obligations arising under peremptory norms of general International Law.

A serious breach involves:

• a gross or systematic failure by the responsible State to fulfil the obligation.

Other States have additional duties in such circumstances, including:

• cooperating to bring the breach to an end through lawful means;
• not recognising as lawful a situation created by the breach;
• not rendering aid or assistance in maintaining that situation.

Erga Omnes Obligations

Some international obligations are owed to the international community as a whole.

The concept of obligations erga omnes is closely related to State responsibility.

A breach of such an obligation may give States other than an injured State a legal interest in invoking responsibility under the conditions recognised by International Law.

Invocation of Responsibility

Article 42 concerns invocation of responsibility by an injured State.

A State may be considered injured where the obligation breached is owed:

• to that State individually; or
• to a group of States including that State, or to the international community as a whole, and the breach specially affects that State.

Invocation by States Other Than an Injured State

Article 48 permits a State that is not an injured State to invoke responsibility in certain circumstances where the obligation breached is owed:

• to a group of States including that State and is established for the protection of a collective interest; or
• to the international community as a whole.

This is particularly important for erga omnes obligations.

Countermeasures

Countermeasures are governed principally by Articles 49–54 ARSIWA.

A State injured by an internationally wrongful act may, under strict conditions, take countermeasures designed to induce the responsible State to comply with its obligations.

Countermeasures must generally be:

• directed against the responsible State;
• proportionate;
• temporary;
• aimed at inducing compliance rather than punishment.

Limits on Countermeasures

Certain obligations cannot be affected by countermeasures.

Countermeasures cannot affect:

• the obligation to refrain from the threat or use of force as prohibited by the UN Charter;
• obligations for the protection of fundamental human rights;
• humanitarian obligations prohibiting reprisals;
• other obligations arising from applicable peremptory norms;
• certain dispute-settlement and diplomatic protections as specified by the rules.

Diplomatic Protection

State responsibility also interacts with diplomatic protection.

A State may invoke responsibility for injury caused to its national by another State where the requirements of International Law concerning diplomatic protection are satisfied.

The classic principle is that an injury to a national may, under applicable rules, become the basis for action by the State of nationality.

Responsibility for Internationally Wrongful Acts

The law of State responsibility does not generally ask whether the State’s conduct was morally wrong.

The legal questions are:

Was there an international obligation?

↓

Was it breached?

↓

Is the conduct attributable to the State?

↓

Does any circumstance preclude wrongfulness?

↓

What consequences follow?

State Responsibility vs Individual Criminal Responsibility

These are different legal regimes.

State Responsibility

Concerns responsibility of the State for internationally wrongful acts.

Individual Criminal Responsibility

Concerns personal responsibility of individuals for international crimes.

For example:

State responsibility

→ wrongful act attributable to State.

Individual responsibility

→ individual may be criminally responsible for genocide, war crimes, crimes against humanity, etc.

The two forms of responsibility may exist simultaneously.

State Responsibility vs International Criminal Law

A State may incur responsibility for conduct involving an international crime, while individuals involved may separately incur criminal responsibility.

Therefore:

One conduct

↓

State responsibility

Individual criminal responsibility

may coexist.

Important Cases

Chorzów Factory, 1928

The PCIJ established the foundational principle of full reparation for internationally wrongful acts.

Corfu Channel, 1949

The ICJ considered State responsibility in relation to Albania’s obligations concerning mines in its territorial waters and the knowledge and conduct of State authorities.

United States Diplomatic and Consular Staff in Tehran, 1980

The United States Diplomatic and Consular Staff in Tehran case concerned the seizure of the US Embassy and diplomatic personnel in Tehran.

The ICJ examined the responsibility of Iran for violations of its international obligations.

Nicaragua v. United States, 1986

The ICJ addressed questions concerning attribution, use of force, non-intervention and State responsibility.

The case is particularly important for understanding the relationship between State responsibility and conduct involving non-State actors.

Bosnia and Herzegovina v. Serbia and Montenegro, 2007

The ICJ considered State responsibility in relation to the Genocide Convention, including questions concerning attribution, prevention and complicity.

Armed Activities on the Territory of the Congo, 2005

The ICJ considered the responsibility of States for internationally wrongful conduct involving military activities and violations of International Law.

Structure of ARSIWA

The Articles on Responsibility of States for Internationally Wrongful Acts can be broadly studied in four parts.

Part One: Internationally Wrongful Act

Articles 1–27

Includes:

• attribution;
• breach;
• circumstances precluding wrongfulness.

Part Two: Content of Responsibility

Articles 28–39

Includes:

• cessation;
• reparation;
• restitution;
• compensation;
• satisfaction.

Part Three: Implementation

Articles 40–54

Includes:

• serious breaches;
• invocation of responsibility;
• countermeasures.

Part Four: General Provisions

Articles 55–59

Contains general provisions concerning the relationship between the Articles and other rules of International Law.

Important Articles

Article	Subject
Article 1	Responsibility for internationally wrongful acts
Article 2	Elements of internationally wrongful act
Article 4	Conduct of State organs
Article 5	Entities exercising governmental authority
Article 7	Excess of authority
Article 8	Conduct directed or controlled by State
Article 11	Conduct acknowledged and adopted by State
Article 12	Existence of breach
Article 13	International obligation in force
Article 14	Extension in time of breach
Article 15	Composite acts
Articles 20–27	Circumstances precluding wrongfulness
Article 25	Necessity
Article 26	Jus cogens
Article 28	Legal consequences
Article 30	Cessation and non-repetition
Article 31	Reparation
Article 34	Forms of reparation
Article 35	Restitution
Article 36	Compensation
Article 37	Satisfaction
Articles 40–41	Serious breaches of jus cogens obligations
Article 42	Invocation by injured State
Article 48	Invocation by other States
Articles 49–54	Countermeasures

State Responsibility Flowchart

State conduct

↓

Is conduct attributable to State?

↓

Yes

↓

Does conduct breach an international obligation?

↓

Yes

↓

Internationally wrongful act

↓

Any circumstance precluding wrongfulness?

↓

No

↓

State responsibility

↓

Cessation + Non-Repetition + Full Reparation

↓

Restitution / Compensation / Satisfaction

Quick Revision

• State Responsibility → responsibility of a State for internationally wrongful acts.
• Main framework → ARSIWA 2001.
• Article 2 → two elements:
  • attribution;
  • breach of international obligation.
• Conduct may be an act or omission.
• Article 4 → State organs.
• Article 5 → entities exercising governmental authority.
• Article 7 → excess of authority remains attributable.
• Article 8 → instructions, direction or control.
• Article 11 → acknowledgment and adoption.
• Article 12 → breach of international obligation.
• Articles 20–27 → circumstances precluding wrongfulness.
• Article 21 → self-defence.
• Article 22 → countermeasures.
• Article 23 → force majeure.
• Article 24 → distress.
• Article 25 → necessity.
• Article 26 → jus cogens.
• Article 30 → cessation and non-repetition.
• Article 31 → full reparation.
• Article 35 → restitution.
• Article 36 → compensation.
• Article 37 → satisfaction.
• Articles 40–41 → serious breaches of jus cogens obligations.
• Article 42 → injured State.
• Article 48 → other States in specified circumstances.
• Articles 49–54 → countermeasures.
• Leading case → Chorzów Factory (1928).
• Other important cases:
  • Corfu Channel
  • Nicaragua v. United States
  • Tehran Hostages
  • Bosnia Genocide
  • Armed Activities in the Congo

Core Formula

Attribution + Breach = Internationally Wrongful Act

Internationally Wrongful Act + No Circumstance Precluding Wrongfulness = State Responsibility

State Responsibility → Cessation + Reparation

Conclusion

State Responsibility is the branch of Public International Law that determines when a State becomes legally responsible for conduct that violates an international obligation and what consequences follow from that violation. The principal framework is contained in the Articles on Responsibility of States for Internationally Wrongful Acts, 2001, prepared by the International Law Commission. Under Article 2, an internationally wrongful act requires two fundamental elements: the conduct must be attributable to the State and must constitute a breach of an international obligation. Attribution is governed principally by Articles 4–11 and covers conduct of State organs, entities exercising governmental authority, organs acting beyond their authority, persons or groups acting under State instructions or control, and conduct subsequently acknowledged and adopted by the State. Breach is governed by Articles 12–15 and may arise from either an act or an omission. Articles 20–27 recognise limited circumstances that may preclude wrongfulness, including consent, lawful self-defence, countermeasures, force majeure, distress and necessity, while Article 26 confirms that such circumstances cannot justify violations of jus cogens. Once responsibility is established, the responsible State must generally cease the wrongful conduct, provide appropriate assurances of non-repetition where required, and make full reparation for the injury caused. Reparation may take the form of restitution, compensation or satisfaction. Articles 40–41 establish additional consequences for serious breaches of obligations arising under peremptory norms. The law also regulates invocation of responsibility by injured and, in certain circumstances, other States, as well as countermeasures. The foundational principle of reparation was expressed in the Chorzów Factory case, while cases such as Corfu Channel, Nicaragua v. United States, Tehran Hostages and Bosnia and Herzegovina v. Serbia and Montenegro have contributed significantly to the development of State responsibility. Ultimately, the law can be reduced to a central framework: attribution + breach = internationally wrongful act; internationally wrongful act without a valid circumstance precluding wrongfulness = State responsibility; State responsibility produces obligations of cessation and reparation.