State responsibility
in part.423 In the absence of any specific provision, however, international law attributes to the responsible State
new obligations, and in particular the obligation to make
reparation for the harmful consequences flowing from
that act. The close link between the breach of an international obligation and its immediate legal consequence
in the obligation of reparation was recognized in article 36, paragraph 2, of the PCIJ Statute, which was carried over without change as Article 36, paragraph 2, of
the ICJ Statute. In accordance with article 36, paragraph 2, States parties to the Statute may recognize as
compulsory the Court’s jurisdiction, inter alia, in all legal
disputes concerning:
(c) The existence of any fact which, if established, would constitute
a breach of an international obligation;
(d) The nature or extent of the reparation to be made for the breach
of an international obligation.
Part One of the articles sets out the general legal rules
applicable to the question identified in subparagraph (c),
while Part Two does the same for subparagraph (d).
(3) Part Two consists of three chapters. Chapter I sets
out certain general principles and specifies more precisely the scope of Part Two. Chapter II focuses on the forms
of reparation (restitution, compensation, satisfaction) and
the relations between them. Chapter III deals with the special situation which arises in case of a serious breach of an
obligation arising under a peremptory norm of general international law, and specifies certain legal consequences
of such breaches, both for the responsible State and for
other States.
Chapter I
GENERAL PRINCIPLES
Commentary
(1) Chapter I of Part Two comprises six articles, which
define in general terms the legal consequences of an internationally wrongful act of a State. Individual breaches
of international law can vary across a wide spectrum from
the comparatively trivial or minor up to cases which imperil the survival of communities and peoples, the territorial integrity and political independence of States and the
environment of whole regions. This may be true whether
the obligations in question are owed to one other State
or to some or all States or to the international community as a whole. But over and above the gravity or effects
of individual cases, the rules and institutions of State responsibility are significant for the maintenance of respect
for international law and for the achievement of the goals
which States advance through law-making at the international level.
(2) Within chapter I, article 28 is an introductory article, affirming the principle that legal consequences are
423 On the lex specialis principle in relation to State responsibility,
see article 55 and commentary.
87
entailed whenever there is an internationally wrongful act
of a State. Article 29 indicates that these consequences are
without prejudice to, and do not supplant, the continued
obligation of the responsible State to perform the obligation breached. This point is carried further by article 30,
which deals with the obligation of cessation and assurances or guarantees of non-repetition. Article 31 sets out
the general obligation of reparation for injury suffered in
consequence of a breach of international law by a State.
Article 32 makes clear that the responsible State may not
rely on its internal law to avoid the obligations of cessation and reparation arising under Part Two. Finally, article 33 specifies the scope of the Part, both in terms of the
States to which obligations are owed and also in terms
of certain legal consequences which, because they accrue
directly to persons or entities other than States, are not
covered by Parts Two or Three of the articles.
Article 28. Legal consequences of an internationally
wrongful act
The international responsibility of a State which is
entailed by an internationally wrongful act in accordance with the provisions of Part One involves legal consequences as set out in this Part.
Commentary
(1) Article 28 serves an introductory function for Part
Two and is expository in character. It links the provisions
of Part One which define when the international responsibility of a State arises with the provisions of Part Two
which set out the legal consequences which responsibility
for an internationally wrongful act involves.
(2) The core legal consequences of an internationally
wrongful act set out in Part Two are the obligations of the
responsible State to cease the wrongful conduct (art. 30)
and to make full reparation for the injury caused by the
internationally wrongful act (art. 31). Where the internationally wrongful act constitutes a serious breach by the
State of an obligation arising under a peremptory norm
of general international law, the breach may entail further
consequences both for the responsible State and for other
States. In particular, all States in such cases have obligations to cooperate to bring the breach to an end, not to
recognize as lawful the situation created by the breach and
not to render aid or assistance to the responsible State in
maintaining the situation so created (arts. 40–41).
(3) Article 28 does not exclude the possibility that an
internationally wrongful act may involve legal consequences in the relations between the State responsible for
that act and persons or entities other than States. This follows from article 1, which covers all international obligations of the State and not only those owed to other States.
Thus, State responsibility extends, for example, to human
rights violations and other breaches of international law
where the primary beneficiary of the obligation breached
is not a State. However, while Part One applies to all the
cases in which an internationally wrongful act may be
committed by a State, Part Two has a more limited scope.
It does not apply to obligations of reparation to the extent