State responsibility
RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS
General commentary
(1) These articles seek to formulate, by way of codification and progressive development, the basic rules of
international law concerning the responsibility of States
for their internationally wrongful acts. The emphasis is
on the secondary rules of State responsibility: that is to
say, the general conditions under international law for the
State to be considered responsible for wrongful actions or
omissions, and the legal consequences which flow therefrom. The articles do not attempt to define the content of
the international obligations, the breach of which gives
rise to responsibility. This is the function of the primary
rules, whose codification would involve restating most of
substantive customary and conventional international
law.
(2) Roberto Ago, who was responsible for establishing
the basic structure and orientation of the project, saw the
articles as specifying:
the principles which govern the responsibility of States for internationally wrongful acts, maintaining a strict distinction between this task
and the task of defining the rules that place obligations on States, the
violation of which may generate responsibility … [I]t is one thing to
define a rule and the content of the obligation it imposes, and another
to determine whether that obligation has been violated and what should
be the consequences of the violation.32
(3) Given the existence of a primary rule establishing
an obligation under international law for a State, and assuming that a question has arisen as to whether that State
has complied with the obligation, a number of further
issues of a general character arise. These include:
(a) The role of international law as distinct from the
internal law of the State concerned in characterizing
conduct as unlawful;
(b) Determining in what circumstances conduct is
to be attributed to the State as a subject of international
law;
(c) Specifying when and for what period of time there
is or has been a breach of an international obligation by
a State;
(d) Determining in what circumstances a State may be
responsible for the conduct of another State which is incompatible with an international obligation of the latter;
(e) Defining the circumstances in which the wrongfulness of conduct under international law may be precluded;
(f) Specifying the content of State responsibility, i.e.
the new legal relations that arise from the commission
by a State of an internationally wrongful act, in terms of
cessation of the wrongful act, and reparation for any
injury done;
(g) Determining any procedural or substantive preconditions for one State to invoke the responsibility of
32 Yearbook ... 1970, vol. II, p. 306, document A/8010/Rev.l,
para. 66 (c).
31
another State, and the circumstances in which the right to
invoke responsibility may be lost;
(h) Laying down the conditions under which a State
may be entitled to respond to a breach of an international
obligation by taking countermeasures designed to ensure
the fulfilment of the obligations of the responsible State
under these articles.
This is the province of the secondary rules of State
responsibility.
(4) A number of matters do not fall within the scope of
State responsibility as dealt with in the present articles:
(a) As already noted, it is not the function of the articles to specify the content of the obligations laid down by
particular primary rules, or their interpretation. Nor do the
articles deal with the question whether and for how long
particular primary obligations are in force for a State. It
is a matter for the law of treaties to determine whether a
State is a party to a valid treaty, whether the treaty is in
force for that State and with respect to which provisions,
and how the treaty is to be interpreted. The same is true,
mutatis mutandis, for other “sources” of international obligations, such as customary international law. The articles take the existence and content of the primary rules
of international law as they are at the relevant time; they
provide the framework for determining whether the consequent obligations of each State have been breached, and
with what legal consequences for other States.
(b) The consequences dealt with in the articles are
those which flow from the commission of an internationally wrongful act as such.33 No attempt is made to deal
with the consequences of a breach for the continued validity or binding effect of the primary rule (e.g. the right of
an injured State to terminate or suspend a treaty for material breach, as reflected in article 60 of the 1969 Vienna
Convention). Nor do the articles cover such indirect or
additional consequences as may flow from the responses
of international organizations to wrongful conduct. In carrying out their functions it may be necessary for international organizations to take a position on whether a State
has breached an international obligation. But even where
this is so, the consequences will be those determined by
or within the framework of the constituent instrument of
the organization, and these fall outside the scope of the
articles. This is particularly the case with action of the
United Nations under the Charter, which is specifically
reserved by article 59.
(c) The articles deal only with the responsibility for
conduct which is internationally wrongful. There may be
cases where States incur obligations to compensate for the
injurious consequences of conduct which is not prohibited,
and may even be expressly permitted, by international law
(e.g. compensation for property duly taken for a public
purpose). There may also be cases where a State is obliged
to restore the status quo ante after some lawful activity
has been completed. These requirements of compensation
or restoration would involve primary obligations; it would
be the failure to pay compensation, or to restore the status
33 For the purposes of the articles, the term “internationally wrongful act” includes an omission and extends to conduct consisting of
several actions or omissions which together amount to an internationally wrongful act. See paragraph (1) of the commentary to article 1.