Internationally Wrongful Acts

Internationally Wrongful Acts are acts or omissions attributable to a State that constitute a breach of an international obligation binding upon that State. The concept forms the foundation of the modern law of State Responsibility and is principally addressed in the Articles on Responsibility of States for Internationally Wrongful Acts, 2001 (ARSIWA).

The basic rule is contained in Article 2 ARSIWA.

Meaning

An internationally wrongful act occurs when:

Conduct of a State

Attributable to the State

Breach of an international obligation

↓

Internationally Wrongful Act

The conduct may consist of either an act or an omission.

Article 2: Two Essential Elements

Article 2 establishes two cumulative requirements.

Attribution

The conduct must be attributable to the State under International Law.

Breach

The conduct must constitute a breach of an international obligation of that State.

Therefore:

Attribution + Breach = Internationally Wrongful Act

Neither element alone is sufficient.

Conduct as an Act or Omission

An internationally wrongful act may arise from:

Act

The State actively does something prohibited by an international obligation.

Omission

The State fails to do something that an international obligation requires it to do.

For example, where International Law requires a State to prevent certain conduct and the State fails to take the required measures, the omission may constitute a breach.

Attribution to the State

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

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

Article 4: State Organs

The conduct of any State organ is attributable to the State.

This includes organs exercising:

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

The internal classification of the organ does not prevent attribution.

Article 5: Entities Exercising Governmental Authority

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

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

Article 6: Organs Placed at the 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 receiving and exercising that authority.

Article 7: Excess of Authority

Conduct remains attributable to the State even where its organ:

• exceeds its authority; or
• contravenes instructions.

This is important because a State cannot automatically avoid responsibility by arguing that its official acted contrary to domestic instructions.

Article 8: Instructions, Direction or Control

Conduct of persons or groups may be attributable to a State where they act:

• on the instructions of the State;
• under its direction; or
• under its control,

in carrying out the conduct.

Article 9: Absence of Official Authorities

Conduct may be attributable where persons exercise elements of governmental authority in circumstances involving the absence or default of official authorities.

Article 10: Insurrectional Movements

Conduct of an insurrectional movement may become attributable to a State where the movement:

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

Article 11: Acknowledgement and Adoption

Conduct not otherwise attributable to a State may become attributable where the State acknowledges and adopts the conduct as its own.

Breach of an International Obligation

Attribution alone does not create an internationally wrongful act.

There must be a breach of an international obligation.

Under Article 12 ARSIWA, a breach occurs where the State’s conduct is not in conformity with what is required by the obligation.

The obligation may arise from:

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

Obligation Must Be Binding

Under Article 13, a State cannot be responsible for breaching an obligation unless it was bound by that obligation at the time the conduct occurred.

Therefore:

International obligation

↓

State bound by obligation

↓

Non-conforming conduct

↓

Breach

Source of the Obligation

The law of State responsibility does not depend upon the particular source of the obligation.

The obligation may be:

Treaty

OR

Customary International Law

OR

Other applicable international legal obligation

↓

Breach

↓

International responsibility

Temporal Element

The timing of the obligation is important.

A State cannot generally be held responsible under an international obligation that did not yet bind it when the relevant conduct occurred.

This is reflected in Article 13 ARSIWA.

Continuing Wrongful Acts

An internationally wrongful act may continue over a period of time.

Under Article 14, where a wrongful act is continuing, the breach extends over the period during which the act continues and remains inconsistent with the international obligation.

For example:

Wrongful conduct begins

↓

Conduct continues

↓

Breach continues

until the conduct ends.

Completed Acts

A wrongful act may also be completed at a particular point in time.

The legal consequences then depend upon the nature of the obligation and the conduct involved.

Thus, State responsibility may concern:

• instantaneous acts;
• continuing acts;
• omissions;
• composite conduct.

Composite Acts

Article 15 ARSIWA deals with breaches consisting of a series of actions or omissions.

A breach may occur when the cumulative conduct reaches the point at which it constitutes the wrongful act defined by the international obligation.

This is particularly relevant to obligations that are violated through a pattern or series of conduct rather than one isolated action.

Circumstances Precluding Wrongfulness

Conduct that appears to breach an international obligation may, in certain circumstances, not be considered legally wrongful.

Articles 20–27 ARSIWA identify recognised circumstances precluding wrongfulness.

These include:

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

These circumstances do not erase the underlying obligation. Rather, they may preclude the wrongfulness of particular conduct under the strict conditions established by International Law.

Consent

Under Article 20, valid consent by a State to particular conduct may preclude wrongfulness in relation to that State, to the extent that the conduct remains within the limits of the consent.

The consent must be legally valid and applicable to the conduct concerned.

Self-Defence

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

Self-defence therefore does not provide a general justification for violations of International Law.

Countermeasures

Under Article 22, the wrongfulness of conduct may be precluded where the conduct constitutes a lawful countermeasure taken against a State responsible for an internationally wrongful act.

Countermeasures are subject to strict requirements.

They are intended to induce compliance, rather than function as punishment.

Force Majeure

Article 23 concerns force majeure.

It may apply where an irresistible force or an unforeseen event beyond the State’s control makes performance of the international obligation materially impossible.

It cannot generally be invoked where the State:

• caused the situation; or
• assumed the risk of the situation occurring.

Distress

Under Article 24, distress may preclude wrongfulness where the actor has no other reasonable way of saving their own life or the lives of persons entrusted to their care.

It is a narrowly defined exception.

Necessity

Article 25 recognises necessity in very limited circumstances.

The act must be:

• the only way to safeguard an essential interest;
• against a grave and imminent peril;
• not seriously impairing an essential interest of the State or States toward which the obligation exists, or of the international community as a whole.

Necessity cannot be invoked where:

• the obligation excludes it; or
• the State contributed to the situation of necessity.

Jus Cogens

Article 26 provides that circumstances precluding wrongfulness cannot justify conduct that violates an obligation arising under a peremptory norm of general International Law (jus cogens).

Therefore:

Jus cogens obligation

↓

No ordinary circumstance can justify its violation

Consequences of an Internationally Wrongful Act

Once an internationally wrongful act is established, the responsible State incurs international legal responsibility.

The principal consequences include:

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

Cessation

Under Article 30, if the wrongful act is continuing, the responsible State must cease the conduct.

Where circumstances require, it must also provide appropriate assurances and guarantees of non-repetition.

Reparation

Under Article 31, the responsible State must make full reparation for the injury caused by the internationally wrongful act.

The injury may include:

• material damage;
• moral damage.

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 covers financially assessable damage where restitution does not provide full reparation.

Satisfaction

Article 37

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

It may include:

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

Serious Breaches of Jus Cogens

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 responsibilities, 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.

Internationally Wrongful Acts and Erga Omnes Obligations

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

Where such an obligation is breached, States other than a directly injured State may, under the conditions recognised by International Law, have a legal basis for invoking responsibility.

This is addressed in part through Article 48 ARSIWA.

Internationally Wrongful Acts and Individuals

An internationally wrongful act is primarily concerned with State responsibility.

It should not be confused with individual criminal responsibility.

For example:

State commits internationally wrongful act

→ State responsibility

Where individuals are separately responsible for an international crime:

Individual commits international crime

→ Individual criminal responsibility

Both forms of responsibility may arise from the same factual circumstances.

Internationally Wrongful Act vs International Crime

The term “international crime” has historically been used in discussions of State responsibility, but the modern ARSIWA framework primarily uses the concept of serious breaches of obligations arising under peremptory norms.

Therefore, for modern study, it is preferable to focus on:

Serious breach of jus cogens obligation

under Articles 40–41 ARSIWA.

Important Cases

Chorzów Factory, 1928

The PCIJ established the foundational principle that a State responsible for an internationally wrongful act must provide full reparation for the injury caused.

Corfu Channel, 1949

The ICJ examined State responsibility in relation to mines in Albanian territorial waters and Albania’s international obligations concerning knowledge and notification.

United States Diplomatic and Consular Staff in Tehran, 1980

The ICJ held Iran responsible for violations concerning the protection of diplomatic and consular personnel and premises.

Nicaragua v. United States, 1986

The ICJ considered State responsibility in relation to:

• use of force;
• non-intervention;
• attribution;
• conduct involving non-State actors.

Bosnia and Herzegovina v. Serbia and Montenegro, 2007

The ICJ considered State responsibility under the Genocide Convention, including questions of:

• attribution;
• prevention;
• complicity.

Armed Activities on the Territory of the Congo, 2005

The ICJ examined State responsibility for conduct involving military activities and violations of international obligations.

Important ARSIWA 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	Instructions, direction or control
Article 9	Absence or default of official authorities
Article 10	Insurrectional movements
Article 11	Acknowledgement and adoption
Article 12	Existence of breach
Article 13	International obligation in force
Article 14	Continuing breach
Article 15	Composite acts
Articles 20–27	Circumstances precluding wrongfulness
Article 25	Necessity
Article 26	Jus cogens
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

Internationally Wrongful Act Flowchart

Conduct

↓

Act or omission

↓

Is it attributable to the State?

↓

Yes

↓

Was the State bound by an international obligation?

↓

Yes

↓

Does the conduct breach that obligation?

↓

Yes

↓

Internationally Wrongful Act

↓

Any circumstance precluding wrongfulness?

↓

No

↓

State Responsibility

↓

Cessation + Reparation

↓

Restitution / Compensation / Satisfaction

Quick Revision

• Internationally Wrongful Act → conduct attributable to a State that breaches an international obligation.
• Main provision → Article 2 ARSIWA.
• Two essential elements:
  • attribution;
  • breach.
• Conduct may be an act or omission.
• Articles 4–11 → attribution.
• Article 4 → State organs.
• Article 5 → entities exercising governmental authority.
• Article 7 → excess of authority.
• Article 8 → instructions, direction or control.
• Article 11 → acknowledgment and adoption.
• Article 12 → breach.
• Article 13 → obligation must bind State when conduct occurs.
• Article 14 → continuing breaches.
• Article 15 → composite acts.
• 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.
• Leading case on reparation → Chorzów Factory (1928).
• Key formula:

Attribution + Breach = Internationally Wrongful Act

Internationally Wrongful Act + No Circumstance Precluding Wrongfulness = State Responsibility

Conclusion

An Internationally Wrongful Act is the basic event that gives rise to State Responsibility under International Law. Under Article 2 of the Articles on Responsibility of States for Internationally Wrongful Acts, 2001, such an act exists where conduct consisting of an action or omission is attributable to the State under International Law and constitutes a breach of an international obligation binding upon that State. Attribution is principally governed by Articles 4–11 and covers conduct of State organs, entities exercising governmental authority, officials acting beyond their authority, persons or groups acting under State instructions, direction or control, and conduct subsequently acknowledged and adopted by the State. Breach is governed principally by Articles 12–15 and requires the relevant international obligation to have been binding upon the State when the conduct occurred. Wrongfulness may, in limited circumstances, be precluded by consent, lawful self-defence, countermeasures, force majeure, distress or necessity, subject to the strict requirements of Articles 20–27. These circumstances cannot justify violations of obligations arising under jus cogens. Once an internationally wrongful act is established, the responsible State must generally cease the wrongful conduct, provide assurances or guarantees of non-repetition where appropriate, 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 peremptory norms. The foundational Chorzów Factory case established the principle of full reparation, while Corfu Channel, Nicaragua v. United States, Tehran Hostages and Bosnia and Herzegovina v. Serbia and Montenegro have contributed to the development of the law concerning attribution and State responsibility. Thus, the central structure of the doctrine is straightforward: attribution + breach = internationally wrongful act; an internationally wrongful act gives rise to State responsibility unless a recognised circumstance precludes wrongfulness.