State responsibility

A state is responsible for direct violations of international law—e.g., the breach

of a treaty or the violation of another state's territory. A state must make full
reparation for any injury caused by an illegal act for which it is internationally
responsible. A State has a capacity to perform totality of rights and duties under
the International law. ... In case a State violates its duties as provided by the rule
of International Law, it becomes responsible for the other State having
corresponding rights as provided by the rule of International Law.

The law of State responsibility is the chapter of international law that concerns
the breach by a State of one or more of its international obligations. In
international law, responsibility is the corollary of obligation; every breach by a
subject of international law of its international obligations entails its
international responsibility. The law of State responsibility defines when an
international obligation is to be held to have been breached, as well as the
consequences of that breach, including which States are entitled to react, and
the permissible means of that reaction.

Unlike national laws, wherein different rules often apply according to the source
of the obligation breached (e.g., contract law, tort law, criminal law),
international law does not concern itself with the source of the obligation that
is breached; in principle (and unless otherwise specifically provided) the same
rules apply to the breach of an obligation whether the source of the obligation
is a treaty, customary international law, a unilateral declaration, or the
judgment of an international court.

State responsibility is a fundamental principle of international law, arising out of

the nature of the international legal system and the doctrines of state
sovereignty and equality of states. It provides that whenever one state commits
an internationally unlawful act against another state, international
responsibility is established between the two. A breach of an international
obligation gives rise to a requirement for reparation.

Accordingly, the focus is upon principles concerned with second-order issues, in

other words the procedural and other consequences flowing from a breach of a
substantive rule of international law. This has led to a number of issues
concerning the relationship between the rules of state responsibility and those
relating to other areas of international law.

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Definition of state responsibility
State responsibility is an age-old principle of international law that was
developed to protect the rights of aliens. It arises when a state commits an
international wrong against another state. This rule has now been elevated to
the status of a general principle of international law.16 In Chorzów Factory
(Germany v Poland) (Merits), the Permanent Court of International Justice
defined it not only as a principle of international law but also as ‘a greater
conception of law’ involving an obligation to make reparation for any breach of
an engagement. According to the Court, ‘reparation is therefore the
indispensable complement of a failure to apply a convention and there is no
necessity for this to be stated in the convention itself’. The principle of state
responsibility emanates from the nature of the international legal system, which
relies on states as a means of formulating and implementing its rules, and arises
out of the twin doctrines of state sovereignty and equality of states.

The Draft Articles represent an attempt by the International Law Commission to

codify international rules on state responsibility. The ILC was created in 1949
with a mandate to draft the articles. However, it did not fulfil its task until 9
August 2001, when it adopted the entire set of Draft Articles. Since the Draft
Articles have not been adopted as a treaty, they are clearly not binding.
However, the fact that the Draft Articles codify existing case law and state
practice in this area has prompted Viljam Engström to contend that they
generally provide evidence of established and developing customary
international law. Other commentators have even suggested that the Draft
Articles could have authoritative force considering that they represent the views
of highly recognised publicists in international law.

In terms of the Draft Articles, state responsibility is incurred when two elements
are proved. The first is that there must be conduct consisting of an act or
omission, which is attributable to the state under international law. The second
is that the conduct must constitute a breach of an international obligation of the
state. It is clear, therefore, that state responsibility is dependent on the link
between the state and the wrongful act — the conduct of a private actor must
qualify as an ‘act of a state’.

Scope of State Responsibility

1. State responsibility is a cardinal institution of international law. It results

from the general legal personality of every → State under international
law, and from the fact that States are the principal bearers of

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 international obligations (see also → States, Fundamental Rights and
Duties). Moreover, just as the law of State → treaties is applied by analogy
to the treaties of other international persons (see also → Vienna
Convention on the Law of Treaties [1969] [‘VCLT’]), so State responsibility
provides the frame of reference for considering other forms of
international responsibility, in particular the responsibility of
international organizations (see also → International Organizations or
Institutions, Responsibility and Liability).

2. What amounts to a breach of international law by a State depends on the

actual content of that State’s international obligations, and this varies
from one State to the next. Even under general international law (→
General International Law [Principles, Rules and Standards]), which might
be expected to be virtually uniform for every State, different States may
be differently situated and have different interests: coastal States and
distant-water-fishing States (see also → Fisheries, Coastal; → Fisheries,
High Seas), upstream and downstream riparians (see also → International
Watercourses; → Water, International Regulation of the Use of), capital
importers and capital exporters (see also → Investments, International
Protection), etc. They will also have a different range of treaty and other
commitments and correspondingly distinct responsibilities. There is no
such thing as a uniform code of international law, reflecting the
obligations of all States.

3. On the other hand, the underlying concepts of State responsibility—

attribution, breach, excuses, and consequences—are general in
character. Individual treaties or rules may vary these underlying concepts
in some respect; otherwise they are assumed and apply unless excluded.
These standard assumptions of responsibility, on the basis of which
specific obligations of States exist and are applied, were examined by the
→ International Law Commission (ILC) over more than 40 years. They are
now codified and developed in the ILC’s Draft Articles on Responsibility of
States for Internationally Wrongful Acts, adopted on 10 August 2001
(‘2001 ILC Articles’).

Consequences of state responsibility

The rights accorded to states under international law imply responsibilities.

States are liable for breaches of their obligations, provided that the breach is
attributable to the state itself. A state is responsible for direct violations of

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international law—e.g., the breach of a treaty or the violation of another state’s
territory. A state also is liable for breaches committed by its internal institutions,
however they are defined by its domestic law; by entities and persons exercising
governmental authority; and by persons acting under the direction or control of
the state.

These responsibilities exist even if the organ or entity exceeded its authority.
Further, the state is internationally responsible for the private activities of
persons to the extent that they are subsequently adopted by the state. In 1979,
for example, the Iranian government officially supported the seizure of the U.S.
embassy by militants and the subsequent holding of diplomats and other
embassy staff as hostages. A state is not internationally responsible if its conduct
was required by a peremptory norm of general international law, if it was taken
in conformity with the right to self-defense under the UN Charter, if it
constitutes a legitimate measure to pressure another state to comply with its
international obligations, if it was taken as a result of a force majeure (French:
“greater force”) beyond the state’s control, if it could not reasonably be avoided
in order to save a life or lives, or if it constituted the only means of safeguarding
an essential interest of the state against a grave and imminent peril, where no
essential interest of the states toward which the obligation exists (or of the
international community) was impaired.

A state must make full reparation for any injury caused by an illegal act for which
it is internationally responsible. Reparation consists of restitution of the original
situation if possible, compensation where this is not possible, or satisfaction
(i.e., acknowledgment of and apology for the breach) if neither is possible.
Important Resources on State Responsibility:

• Draft articles on Responsibility of States for Internationally Wrongful Acts

2001.
• GA Res 56/83 para 3 (Dec. 12, 2001), GA Res 59/35 Dec. 2, 2004).
• Chorzow Factory (Germany v. Poland) Case PCIJ. Ser. A. no 17
• Corfu Channel (United Kingdom v. Albania) 1949 I.C.J. 4, 23
• Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda 2005 I.C.J. 168