State Responsibility

AuthorJohn H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld
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 inter-
national law as to state responsibility concern the circumstances in which, and the principle
whereby, the injured state becomes entitled to redress for the damage suered. In other
words, state responsibility is a general set of rules governing the international legal conse-
quences 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. However, articu-
lating a comprehensive series of articles on state responsibility was on the agenda of the
International Law Commission (ILC) for forty-ve years. In , the ILC at last adopted a nal
set of “Draft Articles on the Responsibility of States for Internationally Wrongful Acts” (ILC
Articles on State Responsibility). Two decades later, governments are still debating whether
to develop these articles into a multilateral convention, with no apparent consensus emer-
ging on the issue. Nevertheless, the ILC Articles on State Responsibility have generally been
Ivan A Shearer, ed, Starke’s International Law, th ed (Toronto: Butterworths, ) at .
See further James Crawford et al, eds, The Law of International Responsibility (Oxford: Oxford Univer-
sity Press, ).
“Draft Articles on the Responsibility of States for Internationally Wrongful Acts” in Report of the Inter-
national Law Commission, UN GAOR, th Sess, Supp No  at c IV, para , UN Doc A// ()
[ILC Articles on State Responsibility]. Ten years later, the ILC adopted a set of articles addressing the
related issue of responsibility of international organizations, the terms of which largely mirror those of
the ILC Articles on State Responsibility, subject, of course, to adaptations reecting the specic nature
and role of international organizations: see “Draft Articles on the Responsibility of International
Organizations” in Report of the International Law Commission, UN GAOR, th Sess, Supp No  at
c , para , UN Doc A// (). The General Assembly has periodically requested the views of
governments on the latter articles, including the question of whether they should be transformed into
a multilateral convention, and will next consider these views during its  session: see Responsibil-
ity of International Organizations, GA Res /, UN Doc A/RES//, reprinted in UN GAOR, th
Sess, Supp No  (vol I) at , UN Doc A// ().
 See Responsibility of States for Internationally Wrongful Acts, GA Res /, UN Doc A/RES//
(), commending once again the articles to the attention of governments and deciding to recon-
sider the question of whether to prepare a convention based on the articles during the General Assem-
bly’s th session in .
embraced in their current form as a useful and reliable restatement of the rules of customary
international law on the subject.
As a result, we organize our review of the law of state responsibility around the ILC Articles
on State Responsibility and the ILC’s commentaries that accompany them.
To a domestic lawyer, the idea that breach of a legal obligation necessarily entails responsib-
ility 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 Permanent Court of International
Justice (PCIJ) to address this issue by relying on general principles of law in the following
seminal  decision:
Case Concerning the Factory at Chorzów (Claim for Indemnity) (Germany v Poland), Merits, (1928),
PCIJ (Ser A) No 17 at 29
[As part of the peace settlements following World War I, Upper Silesia was transferred
from Germany to Poland. Thereafter the Polish government expropriated a factory, located
at Chorzów in Upper Silesia, which had been established by a German company under
contract to the German government. Germany sought reparations from Poland for losses
caused by the takeover of the factory.]
. . . It follows from the foregoing that the application is designed to obtain, in favour of
Germany, reparation the amount of which is determined by the damage suered by the
Oberschlesische and Bayerische. Three fundamental questions arise:
() The existence of the obligation to make reparation.
() T he existence of the damage which must serve as a basis for the calculation of the
amount of the indemnity.
() The extent of this damage.
As regards the rst point. The Court observes that it is a principle of international 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 necessity 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 proceedings in the various cases concerning the Chorzów factory.
The ILC Articles on State Responsibility are founded on this general principle: secondary
rules of responsibility and reparation are triggered whenever a primary international legal
While not detracting from their overall utility, one criticism of the ILC Articles on State Responsibility
is that they say little about the shared responsibility of states or international organizations when they
contribute together to indivisible injury to a third state: see André Nollkaemper et al, “Guiding Princi-
ples on Shared Responsibility in International Law” () : Eur J Int’l L .
“Text of the Draft Articles with Commentaries Thereto” in Report of the International Law Commission,
UN GAOR, th Sess, Supp No  at c IV, para , UN Doc A// [Commentaries].
Chap ter : State Re sponsibility 729
obligation of any sort is breached. This is so regardless of whether the primary obligation
expressly provides for a system of responsibility and remedies, although such a “tailor-made”
system will generally prevail in cases of conict with the general rules of state responsibility:
ILC Articles on State Responsibility for Internationally Wrongful Acts, 2001
Article 
Responsibility of a Stat e for its internationally wrong ful acts
Every internationally wrongful act of a State entails the international responsibility of
that State.
Commentar y
. . . The term “international responsibility” covers the new legal relations which arise under
international law by reason of the internationally wrongful act of a State. . . . That every
internationally wrongful act of a State entails the international responsibility of that State,
and thus gives rise to new international legal relations additional to those which existed
before the act took place, has been widely recognized. . . . [T]he term “international respons-
ibility” . . . covers the relations which arise under international law from the internationally
wrongful act of a State, whether such relations are limited to the wrongdoing State and one
injured State or whether they extend also to other States or indeed to other subjects of inter-
national law, and whether they are centred on obligations of restitution or compensation
or also give the injured State the possibility of responding by way of countermeasures. . . .
Article 
Elements of an internat ionally wrongful act of a Stat e
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) constitut es a breach of an international obligation of the State.
Commentar y
Article  species the conditions required to establish the existence of an internationally
wrongful act of the State, i.e., the constituent elements of such an act. . . . For particular con-
duct to be characterized as an internationally wrongful act, it must rst be attributable to
the State. The State is a real organized entity, a legal person with full authority to act 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 wrongful act of the State is that
the conduct attributable 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 contrary to the rights of others [for example, a treaty obligation]. . . .
Ar ticle 
Lex specialis
These articles do not apply where and to the extent that the conditions for the existence
of an internationally wrongful act or the content or implementation of the international
responsibility of a State are governed by special rules of international law.
Commentar y
When dening the primary obligations that apply between them, States often make
special provision for the legal consequences of breaches of those obligations, and even

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