5 – STATE RESPONSIBILITY
Note: States are the primary subjects of IL, but there can be international legal persons other than states
– Reparation for Injuries AO (1949). ILC adopted Articles on Responsibility of International Organisations
in 2011. No regime covers IL responsibility for individuals – war crime tribunals (eg ICTY, ICTR), Rome
Statute of ICC (1998) are the first steps for individual IL criminal responsibility.
Basic Concepts
Every breach of IL (treaty, CIL) theoretically involves state responsibility.
ILC produced a set of draft articles in 2001 – mixture of codification and progressive development. In
UNGA Res 56/83, GA ‘noted’ the articles and commended them to the attention of governments. They
have been cited by international courts and tribunals.
ILC distinguishes between ‘primary’ (substantive rights and duties of IL subjects) and ‘secondary’ (where
SR arises and consequences for breach of primary) rules of responsibility. ILC provides a framework of
secondary rules.
Art 55 on lex specialis – articles don’t apply where special IL rules govern conditions for an
internationally wrongful act or the content/implementation of a state’s responsibility.
For a state to be responsible in IL:
1. The conduct must be attributable to the state
2. The conduct must be in breach of IL
3. There must be no circumstance precluding wrongfulness
General Rules
Breach of IL
Articles 1-3 provide the basic rules, and are taken as CIL:
1. “Every internationally wrongful act of a State entails the international responsibility of that State
2. There is an internationally wrongful act of a State when … an action or omission:
a. is attributable to the State under international law; and
b. constitutes a breach of an international obligation of the State.
3. The characterization of an act of a State as internationally wrongful is governed by international
law … not affected by the characterization of the same act as lawful by internal law.”
Articles 12-15 govern when a breach of international obligation occurs:
Art 12: A breach of international obligation occurs when the state’s action is not in conformity
with an IL obligation, regardless of origin or character
- Rainbow Warrior (1987) (tribunal said SR principles are equally applicable to breach of
treaty – no distinction between contractual and tortious responsibility, violation of any
obligation = SR)
Note: States are the primary subjects of IL, but there can be international legal persons other than states
– Reparation for Injuries AO (1949). ILC adopted Articles on Responsibility of International Organisations
in 2011. No regime covers IL responsibility for individuals – war crime tribunals (eg ICTY, ICTR), Rome
Statute of ICC (1998) are the first steps for individual IL criminal responsibility.
Basic Concepts
Every breach of IL (treaty, CIL) theoretically involves state responsibility.
ILC produced a set of draft articles in 2001 – mixture of codification and progressive development. In
UNGA Res 56/83, GA ‘noted’ the articles and commended them to the attention of governments. They
have been cited by international courts and tribunals.
ILC distinguishes between ‘primary’ (substantive rights and duties of IL subjects) and ‘secondary’ (where
SR arises and consequences for breach of primary) rules of responsibility. ILC provides a framework of
secondary rules.
Art 55 on lex specialis – articles don’t apply where special IL rules govern conditions for an
internationally wrongful act or the content/implementation of a state’s responsibility.
For a state to be responsible in IL:
1. The conduct must be attributable to the state
2. The conduct must be in breach of IL
3. There must be no circumstance precluding wrongfulness
General Rules
Breach of IL
Articles 1-3 provide the basic rules, and are taken as CIL:
1. “Every internationally wrongful act of a State entails the international responsibility of that State
2. There is an internationally wrongful act of a State when … an action or omission:
a. is attributable to the State under international law; and
b. constitutes a breach of an international obligation of the State.
3. The characterization of an act of a State as internationally wrongful is governed by international
law … not affected by the characterization of the same act as lawful by internal law.”
Articles 12-15 govern when a breach of international obligation occurs:
Art 12: A breach of international obligation occurs when the state’s action is not in conformity
with an IL obligation, regardless of origin or character
- Rainbow Warrior (1987) (tribunal said SR principles are equally applicable to breach of
treaty – no distinction between contractual and tortious responsibility, violation of any
obligation = SR)
