State responsibility

• Author: John H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld
• Pages: 763-826

763

CHAPTER 12

STATE RESPONSIBILITY

A. NATURE OF STATE RESPONSIBILITY

One jurist has described state responsibility as follows: “Frequently action taken by one

state results in injury to, or outrage on, the dignity or prestige of another state. The rules

of international law as to state responsibility concern the circumstances in which, and the

principle whereby, the injured state becomes entitled to redress for the damage suffered.”1

In other words, state responsibility is a general set of rules governing the international

legal consequences of violations, by states, of their international legal obligations.

As there is currently no multilateral treaty exhaustively setting out the rules of state

responsibility, these are found principally in customary international law.2 However, ar-

ticulating a comprehensive series of articles on state responsibility was on the agenda

of the International Law Commission (ILC) for forty-f‌ive years. In 2001, the ILC at last

adopted a f‌inal set of “Draft Articles on the Responsibility of States for Internationally

Wrongful Acts” (ILC Articles on State Responsibility).3 Governments are still considering

whether to develop these articles into a multilateral convention, but all indications to date

are that the ILC Ar ticles on State Responsibility have generally been embraced in their

current form as a useful and reliable restatement of the rules of customary international

law on the subject.4

1 Ivan A Shearer, ed, Starke’s International Law, 11th ed (Toronto: Butterworths, 1994) at 26 4.

2 See further James Cr awford, The Law of Inter national Responsibilit y (Oxford: Oxford University Press,

2010).

3 Draft Artic les on the Responsibility of States for Internationall y Wrongful Acts in Report o f the Interna-

tional Law Commission, UN GAOR, 56th Sess, Supp No 10 at c IV, para 76, UN Doc A/56/10 (2001) [ILC

Articles on State Resp onsibility]. Ten years later, the ILC adopted a set of articles addre ssing the related

issue of responsibility of internation al organizations, the terms of which largely echo th ose of the ILC

Articles on State Resp onsibility, subject, of course, to adaptations re f‌lecting the specif‌ic nature and role

of international organizations: see D raft Articles on the Responsibilit y of International Organizations in

Report of the International Law Commission, UN GAOR, 66th Se ss, Supp No 10 at c 5, para 87, UN Doc

A/66/10 (2011). The General Assembly has r equested the views of governments on th ese articles and

will next consider them d uring its 2014 session: see Responsibility of International Organizations, GA Res

66/100, UN Doc A/RES/66/100, reprinted in UN GAOR, 66 th Sess, Supp No 49, vol I at 580–89, UN

Doc A/66/49 (2011).

4 See Responsibili ty of States for Inter nationally Wrongf ul Acts, GA Res 65/19, UN Doc A/RES/65/19, re-

printed in UN GAOR, 65th Sess, Supp No 49, vol I at 60 8, UN Doc A/65/49 (2010), commending again

the articles to the at tention of governments and deciding to reconside r the question of whether to pre-

pare a convention based on the ar ticles during its 2013 session.

764 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY

As a result, we organize our review of the law of s tate responsibility around the ILC

Articles on State Responsibility and the ILC’s commentaries that accompany them.5

B. GENERAL PRINCIPLES OF STATE RESPONSIBILITY

To a domestic lawyer, the idea that breach of a legal obligation necessarily entails respon-

sibility to remedy that breach may seem self-evident. However, in an international legal

system that was, until relatively recently, largely devoid of peaceful law enforcement or

adjudicative mechanisms, this principle was not clearly established as a matter of state

practice and opinio juris prior to the twentieth century. Witness the need for the Perma-

nent Court of International Justice (PCIJ) to address this issue by relying on general prin-

ciples of law in the following 1928 decision:

Case C oncerning the Fac tory at C horzów (Claim for Indemnity) (Germany v Poland),

Merits, (1928), PCIJ (Ser A) No 17 at 29

[As par t of the peace settlements following World War I, Upper Silesia was tran sferred

from Germany to Poland. Thereafter the Polish government expropriated a factory, locat-

ed at Chorzów in Upper Silesia, which had been established by a German company under

contract to the German government. Germany sought reparations for losses caused by

the Polish takeover of the factory.]

. . . It follows from the foregoing that the application is desig ned to obtain, i n favour of

Germany, reparation the amou nt of which is determined by the d amage suffered by the

Oberschlesische and Bayerische. Three fundamental questions arise:

(1) The existence of the obligation to make reparat ion.

(2) The existence of the damage which must serve as a basis for the calculation of the

amount of the indemnity.

(3) The extent of this da mage.

As regards t he f‌irst point. The Cour t observes that it is a principle of internat ional law,

and even a general conception of law, that any breach of an engagement involves an obliga-

tion to make reparation . . . . [T]he Court has already said that reparation is the indispensable

complement of a failure to apply a convention, and there is no necessit y for this to be stated

in the convention itself. The existence of the principle establishing the obligation to make

reparation, as an element of positive international law, has moreover never been disputed

in the course of the proceedin gs in the various cases concerning the Chorzów fac tory . . . .

The ILC Articles on State Responsibility are founded on this general principle: second-

ary rules of responsibility and reparation are triggered whenever a primary international

legal obligation of any sort is breached. This is so regardless of whether the primary

obligation expressly provides for a system of responsibility and reme dies, although such

a “tailor-made” system will generally prevail in cases of conf‌lict with the general rules of

state responsibilit y:

5 “Text of the draft ar ticles with commentaries thereto” in Repor t of the International Law Commission,

UN GAOR, 56th Sess, Supp No 10 at c IV, para 77, UN Doc A/56/10 [Commentaries].

Ch apt er 12: State Resp onsibility 765

ILC Articles on State Responsibility for Internationally Wrongful Acts, 2001

Article 1

Responsibility of a State for its intern ationally wrongful acts

Every internationally wrong ful act of a State entails the international responsibility of

that State .

Commentary

. . . The ter m “internationa l responsibility” covers the new legal relations whic h arise

under international l aw by reason of the internationally wrongf ul act of a State . . . . That

every internationally wrong ful act of a State entails the international responsibility of that

State, and thus gives rise to new international legal relations addit ional to those which

existed before the act took place, has been widely recognized . . . . [T]he term “internation-

al responsibi lity” . . . covers the relat ions which ar ise under i nternational law from the

internationally wrongful act of a State, whether such relations are limited to the wrong-

doing State and one injured State or whether they ex tend also to other States or indeed to

other subjects of international law, and whether they are centred on obligations of restitu-

tion or compensation or also give the injured State the possibility of responding by way of

countermeasures . . . .

Article 2

Elements of an intern ationally wrongful ac t of a State

There is an i nternationally wrongful act of a State when conduct consisting of an act ion

or omission:

(a) is attributable to the State under internat ional law; and

(b) constitutes a breach of an international obligat ion of the State.

Commentary

Article 2 specif‌ies the conditions required to est ablish the ex istence of an internationally

wrongful act of the State, i.e., the constituent elements of such an act . . . . For par ticular

conduct to be characteri zed as an internationally wrongful act, it must f‌irst be attributable to

the State. The State is a real organized e ntity, a legal person with full authority to ac t under

international law. But to recognize this is not to deny the elementary fact that the State can-

not act of itself . . . . States can act only by and through their agents and representatives . . . .

The second condition for the existence of an internationally wrongfu l act of the State is that

the conduct at tributable to the State should constitute a breach of an international obliga-

tion of that State . . . . In international law the idea of breach of an obligation has often been

equated with conduct contrar y to the rights of others [for example, a treaty obligation] . . . .

Article 55

Lex specialis

These art icles do not apply where and to t he extent that the condit ions for the existence

of an internationa lly wrongful act or t he content or implementation of the international

responsibility of a State are governed by speci al rules of international law.

Commentary

When def‌ining the prima ry obligations that apply between them, States often make spe-

cial prov ision for the lega l consequences of breaches of those obligat ions, and even for