32
Report of the International Law Commission on the work of its fifty-third session
quo which would engage the international responsibility
of the State concerned. Thus for the purposes of these
articles, international responsibility results exclusively
from a wrongful act contrary to international law. This is
reflected in the title of the articles.
(d) The articles are concerned only with the responsibility of States for internationally wrongful conduct, leaving to one side issues of the responsibility of international
organizations or of other non-State entities (see articles
57 and 58).
Chapter I
GENERAL PRINCIPLES
Article 1. Responsibility of a State for its
internationally wrongful acts
Every internationally wrongful act of a State entails
the international responsibility of that State.
Commentary
(5) On the other hand, the present articles are concerned
with the whole field of State responsibility. Thus they are
not limited to breaches of obligations of a bilateral character, e.g. under a bilateral treaty with another State. They
apply to the whole field of the international obligations
of States, whether the obligation is owed to one or several
States, to an individual or group, or to the international
community as a whole. Being general in character, they
are also for the most part residual. In principle, States are
free, when establishing or agreeing to be bound by a rule,
to specify that its breach shall entail only particular consequences and thereby to exclude the ordinary rules of
responsibility. This is made clear by article 55.
(1) Article 1 states the basic principle underlying the
articles as a whole, which is that a breach of international law by a State entails its international responsibility.
An internationally wrongful act of a State may consist
in one or more actions or omissions or a combination of
both. Whether there has been an internationally wrongful
act depends, first, on the requirements of the obligation
which is said to have been breached and, secondly, on the
framework conditions for such an act, which are set out in
Part One. The term “international responsibility” covers
the new legal relations which arise under international law
by reason of the internationally wrongful act of a State.
The content of these new legal relations is specified in
Part Two.
(6) The present articles are divided into four parts. Part
One is entitled “The internationally wrongful act of a
State”. It deals with the requirements for the international
responsibility of a State to arise. Part Two, “Content of
the international responsibility of a State”, deals with the
legal consequences for the responsible State of its internationally wrongful act, in particular as they concern cessation and reparation. Part Three is entitled “The implementation of the international responsibility of a State”.
It identifies the State or States which may react to an
internationally wrongful act and specifies the modalities
by which this may be done, including, in certain circumstances, by the taking of countermeasures as necessary to
ensure cessation of the wrongful act and reparation for its
consequences. Part Four contains certain general provisions applicable to the articles as a whole.
(2) PCIJ applied the principle set out in article 1 in a
number of cases. For example, in the Phosphates in Morocco case, PCIJ affirmed that when a State commits an
internationally wrongful act against another State international responsibility is established “immediately as between the two States”.34 ICJ has applied the principle on
several occasions, for example in the Corfu Channel case,35
in the Military and Paramilitary Activities in and against
Nicaragua case,36 and in the Gabčíkovo-Nagymaros
Project case.37 The Court also referred to the principle
in its advisory opinions on Reparation for Injuries,38 and
on the Interpretation of Peace Treaties (Second Phase),39
in which it stated that “refusal to fulfil a treaty obligation
involves international responsibility”.40 Arbitral tribunals
have repeatedly affirmed the principle, for example in the
Claims of Italian Nationals Resident in Peru cases,41 in
Part One
THE INTERNATIONALLY WRONGFUL
ACT OF A STATE
Part One defines the general conditions necessary for
State responsibility to arise. Chapter I lays down three basic principles for responsibility from which the articles
as a whole proceed. Chapter II defines the conditions
under which conduct is attributable to the State. Chapter
III spells out in general terms the conditions under which
such conduct amounts to a breach of an international obligation of the State concerned. Chapter IV deals with certain exceptional cases where one State may be responsible
for the conduct of another State not in conformity with an
international obligation of the latter. Chapter V defines
the circumstances precluding the wrongfulness for conduct not in conformity with the international obligations
of a State.
34 Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B,
No. 74, p. 10, at p. 28. See also S.S. “Wimbledon”, 1923, P.C.I.J.,
Series A, No. 1, p. 15, at p. 30; Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21; and ibid., Merits,
Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 29.
35 Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 4, at
p. 23.
36 Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, I.C.J.
Reports 1986, p. 14, at p. 142, para. 283, and p. 149, para. 292.
37 Gabčíkovo-Nagymaros Project (see footnote 27 above), at p. 38,
para. 47.
38 Reparation for Injuries Suffered in the Service of the United
Nations, Advisory Opinion, I.C.J. Reports 1949, p. 174, at p. 184.
39 Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, Second Phase, Advisory Opinion, I.C.J. Reports 1950,
p. 221.
40 Ibid., p. 228.
41 Seven of these awards rendered in 1901 reiterated that “a universally recognized principle of international law states that the State
is responsible for the violations of the law of nations committed by its
agents” (UNRIAA, vol. XV (Sales No. 66.V.3), pp. 399 (Chiessa claim),
401 (Sessarego claim), 404 (Sanguinetti claim), 407 (Vercelli claim),
408 (Queirolo claim), 409 (Roggero claim), and 411 (Miglia claim)).