State responsibility possible standards. Establishing these is a matter for the interpretation and application of the primary rules engaged in the given case. (4) Conduct attributable to the State can consist of actions or omissions. Cases in which the international responsibility of a State has been invoked on the basis of an omission are at least as numerous as those based on positive acts, and no difference in principle exists between the two. Moreover, it may be difficult to isolate an “omission” from the surrounding circumstances which are relevant to the determination of responsibility. For example, in the Corfu Channel case, ICJ held that it was a sufficient basis for Albanian responsibility that it knew, or must have known, of the presence of the mines in its territorial waters and did nothing to warn third States of their presence.62 In the United States Diplomatic and Consular Staff in Tehran case, the Court concluded that the responsibility of the Islamic Republic of Iran was entailed by the “inaction” of its authorities which “failed to take appropriate steps”, in circumstances where such steps were evidently called for.63 In other cases it may be the combination of an action and an omission which is the basis for responsibility.64 (5) For particular conduct to be characterized as an internationally wrongful act, it must first 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 cannot act of itself. An “act of the State” must involve some action or omission by a human being or group: “States can act only by and through their agents and representatives.”65 The question is which persons should be considered as acting on behalf of the State, i.e. what constitutes an “act of the State” for the purposes of State responsibility. (6) In speaking of attribution to the State what is meant is the State as a subject of international law. Under many legal systems, the State organs consist of different legal persons (ministries or other legal entities), which are regarded as having distinct rights and obligations for which they alone can be sued and are responsible. For the purposes of the international law of State responsibility the position is different. The State is treated as a unity, consistent with its recognition as a single legal person in international law. In this as in other respects the attribution of conduct to the State is necessarily a normative operation. What is crucial is that a given event is sufficiently 62 Corfu Channel, Merits (see footnote 35 above), pp. 22–23. United States Diplomatic and Consular Staff in Tehran (see footnote 59 above), pp. 31–32, paras. 63 and 67. See also Velásquez Rodríguez v. Honduras case, Inter-American Court of Human Rights, Series C, No. 4, para. 170 (1988): “under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions”; and Affaire relative à l’acquisition de la nationalité polonaise, UNRIAA, vol. I (Sales No. 1948.V.2), p. 401, at p. 425 (1924). 64 For example, under article 4 of the Convention relative to the Laying of Automatic Submarine Contact Mines (Hague Convention VIII of 18 October 1907), a neutral Power which lays mines off its coasts but omits to give the required notice to other States parties would be responsible accordingly. 65 German Settlers in Poland, Advisory Opinion, 1923, P.C.I.J., Series B, No. 6, p. 22. 63 35 connected to conduct (whether an act or omission) which is attributable to the State under one or other of the rules set out in chapter II. (7) 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 obligation of that State. The terminology of breach of an international obligation of the State is long established and is used to cover both treaty and non-treaty obligations. In its judgment on jurisdiction in the Factory at Chorzów case, PCIJ used the words “breach of an engagement”.66 It employed the same expression in its subsequent judgment on the merits.67 ICJ referred explicitly to these words in the Reparation for Injuries case.68 The arbitral tribunal in the “Rainbow Warrior” affair referred to “any violation by a State of any obligation”.69 In practice, terms such as “non-execution of international obligations”, “acts incompatible with international obligations”, “violation of an international obligation” or “breach of an engagement” are also used.70 All these formulations have essentially the same meaning. The phrase preferred in the articles is “breach of an international obligation” corresponding as it does to the language of Article 36, paragraph 2 (c), of the ICJ Statute. (8) In international law the idea of breach of an obligation has often been equated with conduct contrary to the rights of others. PCIJ spoke of an act “contrary to the treaty right[s] of another State” in its judgment in the Phosphates in Morocco case.71 That case concerned a limited multilateral treaty which dealt with the mutual rights and duties of the parties, but some have considered the correlation of obligations and rights as a general feature of international law: there are no international obligations of a subject of international law which are not matched by an international right of another subject or subjects, or even of the totality of the other subjects (the international community as a whole). But different incidents may attach to a right which is held in common by all other subjects of international law, as compared with a specific right of a given State or States. Different States may be beneficiaries of an obligation in different ways, or may have different interests in respect of its performance. Multilateral obligations may thus differ from bilateral ones, in view of the diversity of legal rules and institutions and the wide variety of interests sought to be protected by them. But whether any obligation has been breached still raises the two basic questions identified in article 2, and this is so whatever the character or provenance of the obligation breached. It is a separate question who may invoke the responsibility arising from the breach of an obligation: this question is dealt with in Part Three.72 66 Factory at Chorzów, Jurisdiction (see footnote 34 above). Factory at Chorzów, Merits (ibid.). 68 Reparation for Injuries (see footnote 38 above), p. 184. 69 “Rainbow Warrior” (see footnote 46 above), p. 251, para. 75. 70 At the Conference for the Codification of International Law, held at The Hague in 1930, the term “any failure ... to carry out the international obligations of the State” was adopted (see Yearbook ... 1956, vol. II, p. 225, document A/CN.4/96, annex 3, article 1). 71 See footnote 34 above. 72 See also article 33, paragraph 2, and commentary. 67