State Responsibility
State responsibility is the body of secondary rules that determine the consequences of an internationally wrongful act. The authoritative codification is the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts 2001 (ARSIWA), adopted by the UN General Assembly through Resolution 56/83 (annex). Although not yet a treaty, ARSIWA is widely cited as customary law.
Article 2 of the ILC ARSIWA 2001: there is an internationally wrongful act of a state when conduct consisting of an action or omission (a) is attributable to the state under international law; and (b) constitutes a breach of an international obligation of the state.
Elements of state responsibility
Every internationally wrongful act has two cumulative elements:
- Attribution — conduct of natural or legal persons must be imputable to the state.
- Breach — the conduct violates an international obligation in force at the relevant time.
The classic statement comes from the Chorzów Factory Case (Germany v. Poland) PCIJ 1928: "it is a principle of international law that the breach of an engagement involves an obligation to make reparation in adequate form".
Attribution rules (ARSIWA Arts. 4–11)
| Article | Conduct attributable |
|---|---|
| 4 | Organs of the state (legislative, executive, judicial — at any level) |
| 5 | Persons exercising governmental authority |
| 6 | Organs placed at a state's disposal by another state |
| 7 | Conduct ultra vires by state organs |
| 8 | Persons acting on instructions, direction or control |
| 9 | Conduct in the absence of official authorities |
| 10 | Conduct of insurrectional movements that become the government |
| 11 | Conduct acknowledged and adopted as its own |
The Nicaragua Case ICJ 1986 introduced the effective control test for Article 8 attribution — the controlling state must direct or enforce specific operations. The Tadić Case (ICTY 1999) suggested a lower overall control threshold for armed groups; the ICJ in Bosnian Genocide Case (Bosnia v. Serbia) ICJ 2007 reaffirmed the effective-control standard for state responsibility.
Breach of obligation (Arts. 12–15)
- Article 12: breach occurs when conduct does not conform to what the obligation requires.
- Article 13: obligation must be in force at the time of the act (intertemporal rule).
- Article 14: continuing wrongful acts (e.g. prolonged occupation).
- Article 15: composite acts (e.g. genocide, apartheid).
Circumstances precluding wrongfulness (Arts. 20–27)
These are not justifications of breach but defences excluding international responsibility:
- Consent (Art. 20).
- Self-defence (Art. 21) — consistent with UN Charter Art. 51.
- Countermeasures (Art. 22) — proportionate response to prior wrongful act.
- Force majeure (Art. 23) — irresistible force.
- Distress (Art. 24) — danger to life.
- Necessity (Art. 25) — strictly limited, as in the Gabčíkovo-Nagymaros Project Case (Hungary v. Slovakia) ICJ 1997.
A state may not invoke any of these to derogate from a jus cogens norm (Art. 26).
- Strict liability: not the general rule; fault is generally required only where the primary rule so demands.
- Diplomatic protection: a state may espouse the claim of its national after exhaustion of local remedies (codified in ILC Articles on Diplomatic Protection 2006).
- Nottebohm Case (Liechtenstein v. Guatemala) ICJ 1955: nationality must be "genuine and effective".
- Mavrommatis Case PCIJ 1924: state asserts its own right when espousing a national's claim.
Consequences — Part Two of ARSIWA (Arts. 28–41)
The responsible state must:
- Cease the wrongful act (Art. 30(a)).
- Offer assurances and guarantees of non-repetition (Art. 30(b)).
- Make full reparation (Art. 31) — in three forms:
| Form | Article | Notes |
|---|---|---|
| Restitution | 35 | Re-establishment of the situation before the breach |
| Compensation | 36 | Damages for any financially assessable loss |
| Satisfaction | 37 | Acknowledgement, apology, declaration |
The Chorzów Factory principle remains: reparation must, "as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed".
Serious breaches of peremptory norms (Arts. 40–41)
Where a state seriously breaches a jus cogens norm (genocide, slavery, racial discrimination, aggression, torture):
- All states must cooperate to bring the breach to an end.
- No state may recognise as lawful the situation created by the breach.
- No state may aid or assist in maintaining it.
This was applied by the ICJ in the Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) ICJ 2004.
For CSS, structure a state-responsibility answer around the ARSIWA framework: (1) define the internationally wrongful act (Art. 2); (2) discuss attribution with Nicaragua and Bosnia cases; (3) breach; (4) defences (Art. 20–27); (5) reparation per Chorzów Factory and Article 31. Mention jus cogens consequences for an "A" answer.
Invocation of responsibility (Arts. 42–48)
Responsibility may be invoked by:
- The injured state (Art. 42).
- Other states when the obligation is owed to the international community as a whole (Art. 48 — erga omnes).
Modes of dispute settlement include negotiation, mediation, conciliation, arbitration and judicial settlement before the ICJ — encapsulated in UN Charter Article 33. Countermeasures are subject to the proportionality limit affirmed in the Air Services Agreement Case (US v. France) 1978 and Gabčíkovo-Nagymaros.