Grotius remarked,

for an injury caused

“there exists an obligation by the
law of nature to make reparation
for the damage if any be done”
 State Responsibility
Sovereign has no obligation under Law.
But States have obligations under International Law
(vis-à-vis other states)
A breach of an international obligation gives rise to a
requirement for reparation
State Responsibility concerning International duties is
a legal responsibility because it arises out of treaties,
customs (basically international law)
State cannot abolish or create international law
The rules of international law as to state responsibility
concerns the circumstances in which and
principles whereby injured state becomes entitled
to redress for damage suffered.
Traditional View
Limited to the obligation to make reparation
Responsibility only if damages/ injury occurs

Present View
Notion of Responsibility modified
Elimination of damage as a condition for engagement
of responsibility for breach
 Question of Fault
The principle of objective responsibility (the ‘risk’
theory) maintains that the liability of the state is strict.
Once an unlawful act has taken place, which has caused
injury and which has been committed by an agent of the
state, that state will be responsible in international law
to the state suffering the damage irrespective of good or
bad faith.
The subjective responsibility concept (the ‘fault’
theory) emphasises that an element of intentional
(dolus) or negligent (culpa) conduct on the part of the
person concerned is necessary before his state can be
rendered liable for any injury caused.
Majority opinion of international community is in the
objective responsibility (strict liability)
The laws of state responsibility are the principles
governing when and how a state is held
responsible for a breach of an international
obligation.
Laws of State Responsibility include-
(1) the conditions for an act to qualify as
internationally wrongful, (Breach)
(2) the circumstances under which actions of
officials, private individuals and other entities may
be attributed to the state, (Attribution)
(3) general defences to liability (Defences) and
(4) the consequences of liability. (Remedies)
 Cases determining State Responsibility
Chorzow Factory (Indemnity) Case 1928 PCIJ
PCIJ observed that it is a principle of
international law and even a general conception of law
that any breach of an engagement involves an
obligation to make reparation.
Corfu Channel Case 1949 ICJ
ICJ held that Albania was responsible for
explosions and observed “These grave omissions involve
the international responsibility of Albania” and “… there
is a duty upon Albania to pay compensation to the UK”.
State responsibility during wars…. Article 3 of the
Hague Convention 1907….

- If belligerent state violates rules of war, it shall be

responsible for payment of compensation and it is
responsible for the acts committed by persons of
armed forces.
Development of Rules of State Responsibility

Hague Convention 1907

Hague Conference of 1930 (League’s 1930 Codification
Conference- reached Agreement on Imputation)
ILC’s attention in 1948 to codify rules…. ILC appointed
First Rapporteur in 1955… but his work was abandoned…
second rapporteur in 1969 upto 1980 Prof. Ago made an
attempt to codify rules and established the basic
organisational structure of what would become the Draft
Articles. Third Rapporteur worked from 1980-1986 on
definition of injured state. Fourth Rapporteur worked on
this from 1988- 1996. In 1997, ILC appointed Prof.
Crawford as a Special Rapporteur from 1998- 2001 and he
undertook second reading of the draft before which it was
finally submitted and adopted.
ILC Draft Articles was then divided into four parts, 59 articles-

Part I- Origin of International Responsibility – determining

grounds and circumstances under which state may be held to
have committed an international wrongful act which is a
source of international responsibility and elements of
internationally wrongful acts, defences
Part II- content, form and degrees of international
responsibility, determination of consequences that a wrongful
act of a state has under international law (reparative and
punitive consequences of international wrongful act)-
consequences
Part III- settlement of disputes and implementation
Part IV- Final provisions
ILC Articles on Responsibility of States for
Internationally Wrongful Acts 2001

Article 1 Responsibility of States for Internationally

wrongful acts
Article 2 Elements of Internationally wrongful acts of a
state
When conduct consisting of an act or commission is
(1)Attributable to state under international law
(2)Constitutes a breach of international obligation of
the state
 Elements of internationally wrongful act
(1) Attribution- Before a state can be held responsible for
any action, it is necessary to prove a causal connection
between the injury and an official act or omission
attributable to the state alleged to be in breach of its
obligations.
The state is responsible for all actions of its officials and
organs, even if the organ or official is formally
independent and even if the organ or official is acting
ultra vires.
(2) Breach- The act of the state must constitute a breach
of an obligation of the state under international law.
(The obligation arises out of a treaty or a customary
international law)
Article 4. Conduct of organs of a State
1. The conduct of any State organ shall be considered an
act of that State under international law, whether the
organ exercises legislative, executive, judicial or any other
functions, whatever position it holds in the organization of
the State, and whatever its character as an organ of the
central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that
status in accordance with the internal law of the State.
In the Genocide Convention (Bosnia v. Serbia) case, it
was regarded as ‘one of the cornerstones of the law of state
responsibility, that the conduct of any state organ is to be
considered an act of the state under international law, and
therefore gives rise to the responsibility of the state if it
constitutes a breach of an obligation of the state’.
Article 7 Excess of authority or contravention of
instructions:
The conduct of an organ of a State or of a person or entity
empowered to exercise elements of the governmental
authority shall be considered an act of the State under
international law if the organ, person or entity acts in that
capacity, even if it exceeds its authority or contravenes
instructions.
Inter-American Court of Human Rights in Velásquez Rodríguez
case held:
This conclusion [of a breach of the Convention] is independent of whether
the organ or official has contravened provisions of internal law or
overstepped the limits of his authority: under international law a State is
responsible for the acts of its agents undertaken in their official capacity
and for their omissions, even when those agents act outside the sphere of
their authority or violate internal law.

Rule also confirmed in Article 91 of AP I to GC

An unlawful act may be imputed to the state even
where it was beyond the legal capacity of the official
involved, providing, as Verzijl noted in the Caire case,
that the officials ‘have acted at least to all appearances
as competent officials or organs or they must have used
powers or methods appropriate to their official
capacity’.
In the Sandline case, the Tribunal emphasised that, ‘It is
a clearly established principle of international law that
acts of a state will be regarded as such even if they are
ultra vires or unlawful under the internal law of the
state
Article 10 Conduct of an insurrectional or other
movement
1. The conduct of an insurrectional movement which
becomes the new Government of a State shall be
considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which
succeeds in establishing a new State in part of the
territory of a pre-existing State or in a territory under its
administration shall be considered an act of the new State
under international law.
3. This article is without prejudice to the attribution to a State
of any conduct, however related to that of the movement
concerned, which is to be considered an act of that State by
virtue of articles 4 to 9.

Article 10 deals with the special case of attribution to a State of conduct of an

insurrectional or other movement which subsequently becomes the new
Government of the State or succeeds in establishing a new State.
Article 41 Particular consequences of a serious
breach of an obligation under this chapter
1. States shall cooperate to bring to an end through lawful
means any serious breach within the meaning of Article 40.
2. No State shall recognize as lawful a situation created by a
serious breach within the meaning of Article 40, nor render
aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences
referred to in this Part and to such further consequences that
a breach to which this chapter applies may entail under
international law.

Art. 40 refers to serious breach by a State of an obligation

arising under a peremptory norm of general international
law
Article 48. Invocation of responsibility by a State other than an injured
State
1. Any State other than an injured State is entitled to invoke the
responsibility of another State in accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that
State, and is established for the protection of a collective interest of the
group; or
(b) the obligation breached is owed to the international community
as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim
from the responsible State:
(a) cessation of the internationally wrongful act, and assurances and
guarantees of non-repetition in accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the
preceding articles, in the interest of the injured State or of the beneficiaries
of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State
under articles 43, 44 and 45 apply to an invocation of responsibility by a
State entitled to do so under paragraph 1.
 Kinds of State Responsibility
Original Responsibility- for work of its govt.
(state is in direct breach of legal obligations binding on it
under international law)

Vicarious Responsibility- for citizens and work of its

agents
(State’s responsibility is limited to preventive measures-
to secure that wrongdoer makes suitable reparation and
if necessary to punish him- these preventive and
remedial obligations of state in vicarious responsibility is
an obligation- breach of which states bears direct
responsibility)
Consequences of State Responsibility
1. International Delinquency (Any injury to another
state committed by Head of State in violation of
international legal duty… is a wrongful act
committed by a state which is not a breach of a
purely contractual obligation… may include
ordinary breaches of treaty obligations, unjustified
intervention)
2. Responsibility for injury to Aliens (Duty to exercise
due diligence)
1. For acts of private individuals
2. For acts of mob-violence
US Diplomatic and Consular Staff in Tehran 1980….
ICJ held that militants became agents of the state
Reparations for Injuries Suffered in the Service of
UN 1949… Count Bernadotte and a French observer
to mediate in conflict between Arabs and Jews in
Palestine (State’s responsibility towards the
International Organizations)
3. For acts of insurgents
- Calvo Doctrine … Calvo of Argentina… no responsibility
for losses suffered by foreigners/ aliens during civil war
3. State Responsibility for acts of Govt. organs (where
officials have acted out of their powers and
jurisdiction)
4. State Responsibility for acts with foreigners- (No
international responsibility… only local remedies)
5. State Responsibility for Breach of Treaty or
Contractual Obligations
6. State Responsibility for Expropriation of Foreign
Property (Appropriate compensation in accordance
with rules in force in state provided no inequality)
7. Liability for the Acts of Multinational Corporations
- For Hazardous wastes
- For Environment
(right of each state to regulate and supervise the
activities of TNCs within its national jurisdiction and to
take measures to ensure that such activities complies
with its laws, rules and regulations)
 Defences to State Liability
1. Consent (Article 20)
2. Counter-measure in respect of internationally wrongful act
(Article 49 to 52)- Article 49 provides that an injured state may
only take counter-measures against a state responsible for the
wrongful act in order to induce the latter to comply with the
obligations consequent upon the wrongful act.
3. Force majeure (Article 23)… Rainbow warrior case between
France and New Zealand, The issue of force majeure was raised
by France in the Rainbow Warrior arbitration in 1990. It was
argued that one of the French agents repatriated to France
without the consent of New Zealand had to be so moved as a
result of medical factors which amounted to force majeure. The
Tribunal, however, stressed that the test of applicability of this
doctrine was one of ‘absolute and material impossibility’ and a
circumstance rendering performance of an obligation more
difficult or burdensome did not constitute a case of force
majeure….
Force majeure has long been accepted as precluding
wrongfulness, although the standard of proof is high. In the
Serbian Loans case, for example, the Court declined to accept
the claim that the First World War had made it impossible for
Serbia to repay a loan.

4. Distress (Article 24)- The difference between distress and

force majeure is that in the former case there is an element of
choice.
5. State of necessity (Article 25)- Article 25 provides that
necessity may not be invoked unless the act was the only means
for the state to safeguard an essential interest against a ‘grave
and imminent peril’ and the act does not seriously impair an
essential interest of the other state or states or of the
international community as a whole
6. Self-defence (Article 21)
 Consequences of Breach
(Internationally wrongful act)
(1) Cessation and non-repetition (Article 30)- The state
responsible for the internationally wrongful act is under an
obligation to cease that act, if it is continuing, and to offer
appropriate assurances and guarantees of non-repetition if
circumstances so require.
(2) Reparation (Article 31)- includes restitution,
compensation and satisfaction (Art. 34, 35, 36 & 37)-
Article 34 provides that full reparation for the injury caused
by the internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either singly or
in combination.
Restitution in kind is the obvious method of performing
the reparation, since it aims to re-establish the
situation which existed before the wrongful act was
committed
Punitive or exemplary damages go beyond the concept of
reparation as such and were indeed held in Vel´asquez Rodrigu´ez
v. Honduras (Compensation) to be a principle ‘not applicable in
international law at this time’. Compensation is usually
assessed on the basis of the ‘fair market value’ of the
property lost, although the method used to calculate this may
depend upon the type of property involved.
Satisfaction constitutes a third form of reparation. This relates to
non-monetary compensation and would include official
apologies, the punishment of guilty minor officials or the formal
acknowledgement of the unlawful character of an act.
The Tribunal in the Rainbow Warrior arbitration pointed to the
long-established practice of states and international courts of using
satisfaction as a remedy for the breach of an international
obligation, particularly where moral or legal damage had been done
directly to the state. In the circumstances of the case, it concluded
that the public condemnation of France for its breaches of treaty
obligations to New Zealand made by the Tribunal constituted
‘appropriate satisfaction’
Article 37 of the ILC Articles provides that a state
responsible for a wrongful act is obliged to give
satisfaction for the injury thereby caused in so far as it
cannot be made good by restitution or compensation.
Satisfaction may consist of an
acknowledgement of the breach, an expression
of regret, a formal apology or another
appropriate modality. An example of such another
modality might be an assurance or guarantee of non-
repetition.