STATE RESPONSIBILITY

L4304 — International Humanitarian Law II | National University of Lesotho

INTRODUCTION

The law on state responsibility is concerned with the collective responsibility that a state bears for conduct
contrary to international law, performed by a state official or organ of state. In any legal system, there must be
liability for failure to observe obligations — in international law, this is called state responsibility.

A state may be responsible when it:

• Fails to honour a treaty
• Violates the territorial sovereignty of another state
• Damages the property of another state
• Employs armed force against another state
• Injures the diplomatic representatives of another state
• Mistreats the nationals of another state
State responsibility is a legal responsibility. All states are equally responsible under international law for
their illegal acts. This rule is absolute.

A state cannot plead lack of capacity. It cannot relieve itself of responsibility by invoking provisions or omissions
of its domestic law. 'New' states do not enjoy a period of grace before they assume responsibility for the
discharge of their obligations.

THE NATURE OF STATE RESPONSIBILITY

Three essential characteristics must be present:

Element 1 — International legal obligation

There must be an international legal obligation in force between the two states at the time of the alleged
breach.

Element 2 — Breach attributable to the state

There must be an act or omission that violates that obligation and is imputable to (attributable to) the state
responsible.

Element 3 — Loss or damage

The unlawful act or omission must have resulted in loss or damage.

Whenever a breach of any obligation under international law causes damage, a new legal relationship arises
between the party committing the illegal act and the party injured. The former becomes 'responsible' to the
latter.

Is Fault (Culpa) Required?

No. Fault or culpa is not an essential ingredient of state responsibility. The standard is objective — the
only question is:

• Has a breach of international law been committed?

• Is it attributable to the delinquent state under international law?
 Whether the breach occurred through ignorance, carelessness, or negligence is irrelevant. The element of
imputability or attribution is referred to as the subjective element.

Delict vs International Crime

Most breaches of international obligations are delicts — ordinary wrongful acts attracting the usual remedies.
However, where wrongful conduct results from the breach of an obligation essential for the protection of
fundamental interests of the international community, it may be categorized as an international crime
rather than a mere delict.

Erga omnes obligations — When a state violates a community obligation arising erga omnes (owed to all), the
responding state does not pursue a personal interest — it acts on behalf of the whole international community.
This is distinct from ordinary bilateral state responsibility.

EVOLUTION OF THE LAW ON STATE RESPONSIBILITY

Customary International Law — The Historical Foundation

Customary international law established that if a state violated an obligation imposed by an international rule, it
bore international responsibility and had to make reparation for that breach.

The Chorzow Factory Case (PCIJ 1928) — The Foundational Authority

Two critical principles were established:

'It is a principle of International law, and even a general conception of law, that any breach of an engagement
involves an obligation to make reparation.'

'Reparation must, so far as possible, wipe out all the consequences of the illegal act and re-establish a
situation which would in all probability, have existed if the act had not been committed.'

Limitations of the Old Customary Law:

• Did not specify the general elements of international delinquency.
• The form of reparation was not specific — restitution in kind was generally preferred.
• Was unclear whether fault/intent was required or whether breach alone sufficed.
• State responsibility was purely bilateral — only between the delinquent state and the injured state.
• Only states could be held accountable — individuals were only liable in very limited cases (piracy, war
crimes).

The ILC Articles on State Responsibility (2001)

The International Law Commission's Articles on State Responsibility (2001) represent a combination of
codification and progressive development of international law. There are two categories of rules:

• Primary Rules — lay down substantive obligations for states. These are found in customary law or
treaties.
• Secondary Rules — establish the conditions under which a breach of a primary rule has occurred, and the
legal consequences of that breach. These are the focus of the ILC Articles.

Current Position Under the UN Charter:

Under Chapter VI of the UN Charter, states are under an obligation to settle disputes by peaceful means —
through negotiations, conciliation, arbitration or other means. Only if such measures prove unavailing can the
injured state take peaceful counter-measures.
 International law now also imposes individual criminal liability — as opposed to state responsibility — for war
crimes, crimes against humanity, genocide, terrorism, and aggression.

PRE-CONDITIONS FOR LIABILITY

State responsibility can only arise from the breach of an international obligation, whether in treaty, customary
international law, or general principles of law. The conduct complained of may consist of either an action or an
omission.

Key Cases on Omissions:

Corfu Channel Case (ICJ Reports 1949) — Albania knew or must have known of the presence of mines in its
territorial waters and did nothing to warn third parties. British warships were sunk. The ICJ held that Albania's
omission to act — failing to inform international shipping of the minefield — was sufficient basis for
responsibility.

Diplomatic and Consular Staff Case (ICJ Reports 1980) — Iran's responsibility was entailed by the inaction
of its authorities, which failed to take appropriate steps when steps were evidently called for to protect the US
Embassy in Tehran.

IMPUTABILITY / ATTRIBUTION — ARTICLE 4

The conduct complained of must be attributed to the delinquent state under international law. A state cannot
itself act — it acts only through its organs, officials, and agents.

Imposing absolute liability whenever an official is involved encourages states to exercise greater control over their
departments and representatives.

Two Legal Questions Must Be Established:

Question 1 (Imputability): Can the act or omission of the organ, official, or agent be considered, in the
circumstances, as if it were the act of the state?

Question 2 (Responsibility): Would this act or omission be illegal in international law if it had been committed
by the state?

Rules on Attribution by Type of Act:

Type of Act Rule on Attribution

Legislative acts Always attributed to the state — the state cannot shelter behind the inadequacy of its
laws.

Judicial acts Imputable where municipal law makes the attribution, or where the court/judge was
acting within apparent authority.

Executive/ministerial acts Always imputable to the state. Administrative acts imputable where municipal law makes
the attribution or where the official acted within apparent authority.

Acts exceeding authority Still attributed to the state if the organ acted under cover of official status or used means
placed at state disposal — even if it exceeded authority or contravened instructions.

Subsequent ratification An act is imputable to the state wherever the state subsequently ratifies the
unauthorised acts of its agents or nationals.

The Caire Case (French-Mexican Commission, RIAA Vol. 5, 1929):

 A French national was murdered by two Mexican officers who, after failing to extort money, took him to barracks
and shot him. The Commission held:

'The two officers, even if they are deemed to have acted outside their competence, and even if their superiors
countermanded an order, have involved the responsibility of the state, since they acted under the cover of their
status as officers and used means placed at their disposal on account of their status.'

Key principle: Acting under the cover of official status is enough to implicate the state — even if the act was
unauthorized.

ACTING UNDER INSTRUCTIONS — ARTICLE 8

State responsibility may arise where the perpetrator acts on the instruction of, or under the direction or
control of, the state in carrying out the act complained of. This applies even where the persons involved are
private individuals, not state officials.

Nicaragua v USA — Military and Paramilitary Activities Case (ICJ 1986)

The key issue was the degree of control which must be exercised by the state for conduct to be attributable to
it. The question was whether the conduct of the Contras (attempting to overthrow the Sandinista Government in
Nicaragua) was attributable to the USA.

Held: The USA was responsible for the 'planning, direction and support' given to the Contras, but the
broader claim that all conduct of the Contras was attributable to the USA by reason of its overall control was
rejected. The court applied the 'effective control' test — was the USA exercising effective control over the
specific conduct?

Prosecutor v Tadic (ICTY Appeals Chamber, 1999)

The International Criminal Tribunal for the former Yugoslavia held that the requisite degree of control for
attributing armed forces' conduct to a state was 'overall control' — going beyond mere financing and
equipping, and involving participation in the planning and supervision of military operations.

Effective control (Nicaragua) vs Overall control (Tadic): These two cases set different thresholds. Nicaragua
requires effective control over the specific act. Tadic requires overall control over the group. Tadic sets a lower
threshold, making attribution easier.

Charles Taylor — Special Court for Sierra Leone (2008)

Taylor was charged with orchestrating war crimes and crimes against humanity in Sierra Leone — including
planning to take political control of Sierra Leone, directing rebel forces, and controlling civilians through sexual
enslavement and violence. This case illustrates state responsibility principles applied to individual criminal
liability.

CHARACTERIZATION OF CONDUCT — ARTICLE 3

The characterization of conduct as internationally wrongful is governed by international law — not domestic
law.

• An act of a state cannot be characterized as internationally wrongful unless it constitutes a breach of an

international obligation, even if it violates the state's own domestic law.
• A state cannot escape characterization of its conduct as internationally wrongful by pleading that the
conduct conforms to its internal law.
FACTORS EXCLUDING RESPONSIBILITY

Even where a breach is established, certain circumstances may preclude the wrongfulness of the act:

Self-Defence — Article 21
Well established in international law — a state may act to repel actual aggression. The act of self-defence
must be necessary and proportionate.

Consent — Article 20
Where the injured state has consented to the act complained of, responsibility is excluded. Consent must be
valid, prior, and genuine.

Compliance with Peremptory Norms — Article 26

Includes compliance with collective measures under Chapter VII of the UN Charter — e.g. Security
Council-mandated military action.

Counter-measures — Article 22
A state may take counter-measures (including reprisals) in response to an international wrong. However: (1)
redress must first have been unsuccessfully demanded, and (2) counter-measures must be proportionate to
the loss suffered.

State of Necessity — Article 25

A state may be excused for an otherwise illegal act if it was the only means of safeguarding an essential
interest against a grave and imminent peril. Humanitarian reasons may justify otherwise illegal acts. See:
Gabcikovo-Nagymaros Project Case (ICJ 1997).

Distress — Article 24
A state is not responsible for an act that was the only reasonable means of saving lives in a situation of distress
— e.g. aircraft or ships entering state territory under emergency/stress conditions.

Force Majeure — Article 23

A state cannot incur responsibility for damage occurring independently of its will. Force majeure refers to an
irresistible force or unforeseen event beyond the state's control, making it materially impossible to perform
an obligation.

LEGAL CONSEQUENCES OF STATE RESPONSIBILITY

Article 1: Every internationally wrongful act of a state entails the international responsibility of that state. The
responsible state is under two primary obligations:

Obligation 1 — Cessation and Non-Repetition (Article 30)

• To cease the wrongful act if it is continuing.
• To offer appropriate assurances and guarantees of non-repetition if circumstances require.
Rainbow Warrior Case (New Zealand v France, 1990) — France was required to provide assurances of
non-repetition after its agents sank a Greenpeace vessel in New Zealand waters.
LaGrand Case (ICJ 2001) — The court ordered guarantees of non-repetition regarding US violations of
consular rights.

Obligation 2 — Full Reparation (Article 31)

 The responsible state is under an obligation to make full reparation for the injury caused by the internationally
wrongful act.

'Reparation must, so 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.'

— Chorzow Factory Case (PCIJ 1928)

What Counts as 'Injury'?

Injury includes material or moral damages — individual pain and suffering, loss of loved ones, personal affront
from intrusion on home or private life. It also includes the honour, dignity, and prestige of the state (Rainbow
Warrior Case).

Three Forms of Reparation (Articles 34–37)

Form Definition When Used

Restitution (Article Re-establishing the situation that existed before Where materially possible and not
35) the wrongful act was committed. disproportionate.

Compensation Financial payment for financially assessable Where restitution is impossible or

(Article 36) damage — covering material and moral harm. insufficient.

Satisfaction (Article Remedy for injuries not financially assessable — Where the injury amounts to an affront to
37) acknowledgement of breach, expression of regret, the state's honour or dignity.
formal apology.

MASTER SUMMARY TABLE

Issue Rule Authority

Definition Collective responsibility of the state for conduct contrary ILC Articles 2001
to international law by its organs/officials

Three elements (1) International obligation in force; (2) Breach attributable Article 2
to state; (3) Damage/loss

Is fault required? No — standard is objective. Breach + attribution = General principle

responsibility

Actions vs omissions Both can ground state responsibility Corfu Channel; Diplomatic
Staff

Reparation obligation Wipe out consequences and restore the pre-breach Chorzow Factory (1928)
situation

Attribution — acts within Always attributed to the state Article 4

authority

Attribution — acts Still attributed if acting under cover of official status Caire Case (1929)
exceeding authority

Private individuals Attributed if acting under state instruction or control Article 8; Nicaragua v USA

Degree of control Effective control (Nicaragua) vs Overall control (Tadic) Nicaragua (1986); Tadic
(1999)
Domestic law no defence State cannot escape responsibility by pointing to its own Article 3
law

Self-defence Excludes wrongfulness — must be necessary and Article 21

proportionate

Consent Excludes wrongfulness — must be valid and prior Article 20

Force majeure Irresistible/unforeseen event beyond state control making Article 23

compliance impossible

State of necessity Only means of protecting essential interest from Article 25; Gabcikovo
grave/imminent peril

Counter-measures Permitted if proportionate and after redress Article 22

unsuccessfully demanded

Cessation Must cease ongoing wrongful act Article 30

Restitution Restore the pre-breach situation where possible Article 35

Compensation Financial payment for assessable material/moral damage Article 36

Satisfaction Acknowledgement, apology, or expression of regret for Article 37

non-financial harm

KEY CASES SUMMARY

Case Key Point

Chorzow Factory Case (PCIJ 1928) Any breach of an international engagement involves an obligation to make
reparation. Reparation must wipe out all consequences of the illegal act.

Corfu Channel Case (ICJ 1949) Omission to act (failure to warn of mines) sufficient to ground state responsibility.
Albania liable for inaction.

Diplomatic and Consular Staff Case Iran responsible through inaction — failure to take appropriate steps when steps
(ICJ 1980) were evidently called for.

Caire Case (RIAA 1929) State responsible for acts of officials acting under cover of official status and
using state means, even if unauthorised.

Nicaragua v USA (ICJ 1986) Effective control test — USA responsible for planning, direction and support of
Contras but not all Contra conduct.

Prosecutor v Tadic (ICTY 1999) Overall control test — lower threshold than Nicaragua. State responsible if it
exercises overall control including participation in planning and supervision.

Gabcikovo-Nagymaros Project (ICJ Examined state of necessity as a defence to international responsibility.

1997)

Rainbow Warrior Case (1990) France required to cease wrongful acts and provide assurances of non-repetition.
Illustrated satisfaction as a form of reparation.

LaGrand Case (ICJ 2001) Court ordered guarantees of non-repetition for violation of consular rights — first
time ICJ issued provisional measures binding on a state.

LIKELY EXAM QUESTIONS

Q1: What are the essential elements of state responsibility under international law?
Address the three elements (obligation, breach, attribution, damage), explain the objective standard, discuss the
distinction between actions and omissions with Corfu Channel and Diplomatic Staff, and address fault.

Q2: Discuss the rules on attribution/imputability in international law.

Explain the two legal questions, cover legislative/judicial/executive acts, address acts exceeding authority using
Caire, and discuss private individuals acting under state control using Nicaragua and Tadic.

Q3: Compare the 'effective control' and 'overall control' tests for attribution.
Explain Nicaragua v USA (effective control — specific acts), contrast with Tadic (overall control — broader),
discuss which sets a lower threshold and why this matters practically.

Q4: What circumstances may exclude state responsibility?

Cover all seven circumstances — self-defence, consent, peremptory norms, counter-measures, necessity,
distress, and force majeure — with their ILC Article references and conditions for application.

Q5: Discuss the legal consequences of an internationally wrongful act, with particular reference to
reparation.
Address cessation and non-repetition (Article 30), full reparation (Article 31), and all three forms of reparation —
restitution, compensation, and satisfaction — with Chorzow Factory and Rainbow Warrior.

National University of Lesotho — Faculty of Law — L4304 International Humanitarian Law II