State Responsibility in International Law: Attribution, Breach and Reparation
When a State fails to comply with international law, identifying the violated rule is only the beginning of the legal inquiry. Further questions arise. Is the relevant conduct legally attributable to the State? Was an international obligation binding on that State actually breached? Can the State rely on a circumstance that precludes wrongfulness? What consequences follow from the breach, and who is entitled to invoke responsibility?
These questions belong to the law of State responsibility. Its principal modern reference point is the International Law Commission's 2001 Articles on Responsibility of States for Internationally Wrongful Acts. The Articles organize the general rules governing the existence of an internationally wrongful act, attribution, breach, circumstances precluding wrongfulness, reparation, invocation of responsibility and countermeasures.
The subject is sometimes explained too narrowly as liability for damage caused by one State to another. Modern international law is broader. Responsibility can arise from an action or an omission. Legislative, executive, judicial and other State organs may engage the responsibility of the State. Some obligations protect collective interests or the interests of the international community as a whole, and responsibility may in defined circumstances be invoked by a State that is not individually injured.
In brief: Article 2 of the ILC Articles identifies two general elements of an internationally wrongful act. The conduct, consisting of an action or omission, must be attributable to the State under international law, and it must constitute a breach of an international obligation of that State. Material damage, negligence and intention to cause harm are not separate universal requirements, although the particular international obligation alleged to have been breached may itself require harm, knowledge, intention, due diligence or another specific element.
Contents
What is State responsibility?
State responsibility is the body of international law that determines when an internationally wrongful act of a State exists and what legal consequences follow from it.
Article 1 of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts states the basic principle that every internationally wrongful act of a State entails the international responsibility of that State.
The rule does not mean that every harmful event occurring within a State's territory is automatically an internationally wrongful act of that State. International responsibility normally requires both attribution of the relevant conduct to the State and breach of an international obligation.
State responsibility should also be distinguished from political criticism or moral blame. It is a legal consequence arising under international law when the requirements of an internationally wrongful act are satisfied.
The ILC Articles on State Responsibility
The principal modern framework is the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts, commonly referred to as the State Responsibility Articles or ARSIWA.
The International Law Commission adopted the final text in 2001 after a lengthy process of codification and development. The instrument contains 59 articles divided into four Parts.
Part One deals with the internationally wrongful act of a State. Part Two concerns the content and consequences of international responsibility. Part Three deals with implementation of responsibility, including invocation and countermeasures. Part Four contains general provisions.
The United Nations General Assembly adopted Resolution 56/83 on 12 December 2001, taking note of the Articles and commending them to the attention of governments without prejudice to the question of their future adoption or other appropriate action.
The Articles are therefore not themselves a multilateral treaty.
At the same time, their importance should not be underestimated. International courts and tribunals frequently refer to them, and a number of their provisions reflect customary international law. The customary status of a particular proposition should nevertheless be assessed provision by provision rather than assuming automatically that every sentence of the Articles and commentaries has identical legal status.
Primary and secondary rules of international law
The State Responsibility Articles are primarily concerned with what international lawyers call secondary rules.
A primary rule establishes what a State is required or prohibited from doing. A treaty may impose a particular obligation, customary international law may prohibit certain conduct, or another source of international law may require a State to act in a specified manner.
The ways in which such international obligations arise are examined in our guide to the sources of international law.
The law of State responsibility then asks what happens when a primary obligation is breached. It deals with questions such as attribution, breach, circumstances precluding wrongfulness, cessation, reparation and invocation of responsibility.
The distinction explains why the ILC Articles do not contain a catalogue of all substantive international obligations. They supply a general framework for responsibility when obligations derived from other rules of international law are violated.
Article 33 also deserves attention. It recognizes that the obligations arising from State responsibility may be owed to another State, several States or the international community as a whole, while preserving any rights arising directly for persons or entities other than States.
Elements of an internationally wrongful act
Article 2 provides the central test.
There is an internationally wrongful act of a State when conduct consisting of an action or omission:
- is attributable to the State under international law; and
- constitutes a breach of an international obligation of the State.
These are the two general constituent elements identified by Article 2.
A person's conduct may be unlawful without being attributable to the State. Conversely, conduct of a State organ will ordinarily satisfy attribution, but international responsibility does not arise unless that conduct also fails to conform to an international obligation binding upon the State.
Is damage always necessary?
No.
The ILC commentary expressly addresses the suggestion that damage to another State should be treated as an additional universal requirement and rejects such a general rule.
Whether damage is required depends upon the content of the primary international obligation. Some obligations are framed around prevention of particular harm. Others can be breached by prohibited conduct or failure to perform a required act even without proof of separate material loss.
Damage becomes especially important when questions of injury, causation and reparation arise, but it should not simply be inserted into Article 2 as a universal third element.
Is fault or intention always required?
No.
There is no universal additional rule requiring proof that a State intended to cause harm.
The ILC commentary explains that, absent a specific mental element in the relevant primary obligation, intention to harm is not generally required merely because State responsibility is alleged.
A particular international obligation may nevertheless require intention, knowledge, negligence, due diligence or another standard of conduct. Where the primary rule contains such a requirement, that element must be established as part of the breach.
Can an omission create responsibility?
Yes.
Article 2 expressly includes both actions and omissions.
A State may therefore incur responsibility because an official performed prohibited conduct or because international law required the authorities to take certain action and they failed to do so.
Duties to prevent, protect, warn, investigate or exercise due diligence frequently raise responsibility through omission.
Can domestic law justify an internationally wrongful act?
No.
Article 3 provides that the characterization of an act as internationally wrongful is governed by international law and is not affected by the fact that the same conduct is regarded as lawful under the State's internal law.
A State cannot therefore avoid international responsibility simply by showing that its constitution, legislation or administrative rules permitted the conduct.
Attribution of conduct to a State
A State is an international legal person and acts through individuals, institutions and other entities. Attribution determines when conduct performed by those actors is legally treated as conduct of the State.
Articles 4 to 11 contain the principal attribution rules.
Conduct of State organs
Article 4 provides that the conduct of any State organ is considered an act of that State under international law.
The rule applies whether the organ exercises legislative, executive, judicial or any other functions. It also applies regardless of the organ's position within the organization of the State and whether it belongs to the central government or a territorial unit.
Parliamentary bodies, ministries, courts, armed forces, police and qualifying provincial or local organs may therefore engage the international responsibility of the State.
A State cannot avoid attribution merely by arguing that the conduct came from a subordinate authority rather than the central executive.
Persons or entities exercising governmental authority
Article 5 addresses persons or entities that are not formally State organs under Article 4 but are empowered by the law of the State to exercise elements of governmental authority.
Their conduct is attributed to the State where they act in that governmental capacity in the particular instance.
The provision is especially relevant where public functions have been delegated to bodies outside the conventional structure of government. Private ownership alone does not answer the attribution question. The governmental authority conferred and the capacity in which the entity acted must be examined.
Organs placed at the disposal of another State
Article 6 deals with an organ of one State that has been placed at the disposal of another State.
Its conduct is attributed to the State at whose disposal it has been placed where it acts in the exercise of elements of the governmental authority of that State.
The rule requires more than the mere presence of officials from one State in another. The function actually performed and the relationship between the organ and the receiving State are important.
What if an official exceeds authority or disobeys instructions?
A State cannot automatically avoid attribution by arguing that an official acted unlawfully, exceeded authority or violated instructions.
Article 7 provides that conduct of a State organ, or of an entity empowered to exercise governmental authority, remains attributable where the actor acts in that official capacity even though authority has been exceeded or instructions contravened.
The important distinction is between conduct undertaken in an official capacity and genuinely private conduct. An official's employment by the State does not convert every private act into conduct of the State, but acting beyond lawful authority does not by itself defeat attribution.
Are acts of private individuals attributable to a State?
Not merely because the individuals are nationals, residents, political supporters or beneficiaries of State assistance.
Article 8 provides that the conduct of a person or group is considered an act of the State if that person or group is in fact acting on the instructions of, or under the direction or control of, the State in carrying out the relevant conduct.
The Article therefore contains several possible bases of attribution. Instructions, direction and control should not be collapsed into a single test.
The effective-control test
Where attribution is asserted on the basis of State control over a non-State group, the jurisprudence of the International Court of Justice is particularly important.
In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court examined whether acts of the contras could be attributed to the United States.
The Court did not consider extensive financing, organization, training, supply and other forms of support sufficient by themselves to make every act of the contras an act of the United States. For responsibility based upon control of the relevant conduct, the Court required effective control over the military or paramilitary operations in the course of which the violations occurred.
The Court returned to attribution in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) in 2007.
For the purposes of State responsibility, the Court retained the effective-control approach. It did not adopt the broader “overall control” test developed by the International Criminal Tribunal for the former Yugoslavia in Tadić for a different legal purpose.
This distinction matters. The legal test used to classify an armed conflict or address individual criminal responsibility should not automatically be substituted for the rules governing attribution of conduct to a State.
Private conduct and the State's own failure to prevent it
Attribution should also be distinguished from a State's own duty to prevent or respond to private conduct.
A private group's acts may not themselves be attributable to the State under Article 8. The State may nevertheless incur responsibility if a separate international obligation required its authorities to prevent, protect against or respond to that conduct and they failed to perform that obligation.
In such a case, the internationally wrongful conduct attributable to the State is its own omission rather than the private actor's conduct being automatically transformed into an act of the State.
Conduct in the absence of official authorities
Article 9 addresses exceptional cases in which a person or group exercises elements of governmental authority in the absence or default of official authorities and in circumstances calling for the exercise of those functions.
Where those conditions are satisfied, the conduct may be attributed to the State even though the actors were not ordinary State organs.
Insurrectional movements
Article 10 deals with successful insurrectional or other movements.
Where an insurrectional movement becomes the new government of a State, the conduct of the movement is considered an act of that State.
Where a movement succeeds in establishing a new State in part of the territory of a pre-existing State or in territory under its administration, the conduct of the movement is attributed to the new State.
Questions concerning the existence of a new State and the distinction between a State and its government are examined separately in our guide to recognition of States in international law.
Conduct acknowledged and adopted by a State as its own
Article 11 provides another basis for attribution.
Conduct that was not attributable to the State under the preceding Articles may nevertheless be considered an act of the State if and to the extent that the State acknowledges and adopts the conduct as its own.
The ILC commentary emphasizes that mere approval of a factual situation is not necessarily enough. The State must identify the conduct and make it its own.
The Tehran Hostages case
A leading example is United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran).
The International Court of Justice distinguished the initial occupation of the United States Embassy by militants from the subsequent conduct of Iranian State authorities.
The initial seizure was not treated simply as conduct of Iran merely because private militants carried it out on Iranian territory. Iran nevertheless violated its own international obligations by failing to take appropriate measures to protect the embassy and diplomatic personnel.
The later endorsement and decision by Iranian State authorities to perpetuate the occupation and detention changed the legal position, providing a basis for treating the continued conduct as acts of the State.
The same judgment is central to our discussion of diplomatic immunity under international law.
Breach of an international obligation
Attribution alone does not establish an internationally wrongful act.
Article 12 provides that a breach exists when an act of the State is not in conformity with what an international obligation requires of that State, regardless of the origin or character of the obligation.
The underlying obligation may arise from a treaty, customary international law or another applicable source.
The obligation must bind the State at the relevant time
Article 13 provides that an act does not constitute a breach unless the State was bound by the relevant international obligation when the act occurred.
Responsibility therefore cannot ordinarily be imposed retrospectively on the basis of an international obligation that was not binding upon the State at the relevant time.
Instantaneous and continuing breaches
Article 14 distinguishes an act without a continuing character from a continuing breach.
A non-continuing breach occurs when the act is performed even though its effects may continue afterwards.
A continuing breach extends throughout the period during which the act continues and remains inconsistent with the international obligation.
Article 14 also specifically addresses obligations to prevent a given event. Where such an obligation is breached, the breach begins when the event occurs and continues for as long as the event continues and remains inconsistent with the obligation.
Composite acts
Article 15 concerns a series of actions or omissions that are defined in aggregate as internationally wrongful.
The breach occurs when enough of the series has taken place to constitute the composite wrongful act and extends from the first relevant action or omission for as long as the conduct continues to be repeated and remains inconsistent with the obligation.
Responsibility in connection with the conduct of another State
A State may in certain circumstances incur responsibility through its involvement in internationally wrongful conduct committed by another State.
Articles 16 to 18 address three distinct situations: aid or assistance, direction and control, and coercion.
Aid or assistance under Article 16
Article 16 provides that a State which aids or assists another State in the commission of an internationally wrongful act is internationally responsible for doing so where the assisting State acts with knowledge of the circumstances of the wrongful act and the underlying act would also be internationally wrongful if committed by the assisting State.
The text of Article 16 expressly refers to knowledge but does not itself use the word “intention.”
The ILC commentary adds an important qualification. It explains Article 16 as covering assistance given with a view to facilitating the wrongful act and states that the relevant State organ must intend, through the aid or assistance, to facilitate the wrongful conduct. The assistance must actually contribute to the commission of the act, although it need not have been indispensable.
Because the wording of the Article and its commentary should be distinguished carefully, it is preferable to identify this additional intent language as part of the ILC's commentary rather than silently inserting it into the text of Article 16.
Ordinary political, economic or military cooperation therefore does not automatically establish responsibility merely because the recipient State subsequently commits an international wrong. The circumstances of the assistance, the required knowledge, its connection with the wrongful conduct and the obligations binding upon the assisting State must be examined.
Direction and control
Article 17 addresses the stronger situation in which one State directs and controls another State in the commission of an internationally wrongful act.
The directing State must have knowledge of the circumstances of the wrongful act, and the act must be one that would also be internationally wrongful if committed by the directing State itself.
Coercion
Article 18 concerns coercion of another State.
A coercing State is responsible where the act would, but for the coercion, have constituted an internationally wrongful act of the coerced State and the coercing State acts with knowledge of the circumstances.
The legal concept of coercion should not automatically be equated with ordinary diplomatic persuasion, economic influence or political pressure. The particular circumstances must satisfy the demanding character of Article 18.
Circumstances precluding wrongfulness
Articles 20 to 25 identify circumstances that may preclude the wrongfulness of conduct that would otherwise fail to conform to an international obligation.
They are sometimes described as defences, but that shorthand should be used cautiously. A circumstance precluding wrongfulness does not necessarily extinguish the underlying obligation permanently, and Article 27 preserves important consequences once the circumstance ends.
Consent
Article 20 provides that valid consent by one State to a particular act of another State precludes wrongfulness in relation to the consenting State to the extent that the conduct remains within the limits of the consent.
Consent must therefore be valid and must cover the actual conduct in question.
Self-defence
Article 21 provides that wrongfulness is precluded where the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.
The word “lawful” is critical. Article 21 does not independently create a right to use force. The requirements governing lawful self-defence must first be satisfied.
Nor does lawful self-defence suspend every other international obligation. The ILC commentary specifically explains that international humanitarian law continues to apply in armed conflict and that self-defence does not preclude wrongfulness in relation to applicable humanitarian obligations or non-derogable human-rights obligations.
Article 21 must therefore be applied together with the primary rules governing the use of force, armed conflict and any other obligation that remains applicable in the circumstances.
Countermeasures as a circumstance precluding wrongfulness
Article 22 recognizes that an act which would otherwise breach an obligation owed to another State may have its wrongfulness precluded if and to the extent that it constitutes a countermeasure taken against that State in accordance with the requirements of Part Three.
The detailed requirements and limitations governing countermeasures are discussed below.
Force majeure
Article 23 concerns an irresistible force or unforeseen event beyond the control of the State that makes performance of the obligation materially impossible in the circumstances.
Material impossibility is more demanding than inconvenience, increased expense or political difficulty.
Force majeure is unavailable where the situation is attributable, alone or in combination with other factors, to the conduct of the State invoking it or where that State assumed the risk of the situation occurring.
Distress
Article 24 applies where the author of the conduct has no other reasonable way, in a situation of distress, to save that person's life or the lives of persons entrusted to his or her care.
The circumstance cannot be invoked where the State itself caused the situation, alone or together with other factors, or where the challenged act is likely to create a comparable or greater peril.
Distress therefore concerns immediate threats to human life rather than general governmental convenience.
Necessity
Necessity is governed by Article 25 and is framed as an exceptional circumstance.
A State may not invoke necessity unless the challenged conduct is the only way to safeguard an essential interest against a grave and imminent peril and does not seriously impair an essential interest of the State or States toward which the obligation exists, or of the international community as a whole.
Necessity is unavailable where the international obligation excludes its invocation or where the State has contributed to the situation of necessity.
In Gabčíkovo-Nagymaros Project (Hungary/Slovakia), the International Court of Justice recognized necessity as a ground known to international law but emphasized the strict conditions governing its use.
Necessity is therefore not a general licence to disregard an international obligation whenever performance becomes inconvenient, politically undesirable or expensive.
Peremptory norms cannot be displaced
Article 26 imposes an important limitation on all of the circumstances in the chapter.
Nothing in Articles 20 to 25 precludes the wrongfulness of an act that is inconsistent with an obligation arising under a peremptory norm of general international law.
Consent, necessity or another circumstance precluding wrongfulness cannot therefore be used to justify conduct prohibited by a peremptory norm.
What happens when the circumstance ends?
Article 27 provides that invocation of a circumstance precluding wrongfulness is without prejudice to compliance with the obligation if and to the extent that the circumstance no longer exists.
It also preserves the question of compensation for material loss caused by the act in question.
That form of compensation should not be confused automatically with reparation for internationally wrongful conduct, because the premise of Article 27 is that wrongfulness has been precluded for the relevant conduct.
Legal consequences of State responsibility
Part Two of the Articles addresses the consequences once international responsibility has arisen.
Article 29 states that the legal consequences of the wrongful act do not affect the responsible State's continuing duty to perform the obligation that was breached.
Article 30 requires cessation where the wrongful act is continuing and appropriate assurances and guarantees of non-repetition where the circumstances require them.
Article 31 then requires full reparation for the injury caused by the internationally wrongful act. Injury includes material and moral damage.
Article 32 further prevents the responsible State from relying upon its internal law as justification for failure to comply with its obligations under Part Two.
The principle of full reparation
The modern law of reparation is closely associated with the Permanent Court of International Justice's 1928 judgment in the Factory at Chorzów case.
The Court treated reparation as the legal consequence of breach and formulated the influential principle that reparation should, so far as possible, remove the consequences of the unlawful act and restore the position that would probably have existed had the wrongful act not occurred.
The State Responsibility Articles reflect this approach.
Article 34 identifies restitution, compensation and satisfaction as the principal forms of full reparation. They may be provided separately or in combination.
Restitution
Article 35 defines restitution as re-establishing the situation that existed before the wrongful act was committed.
Restitution is required provided and to the extent that it is not materially impossible and does not impose a burden out of all proportion to the benefit deriving from restitution instead of compensation.
Depending upon the nature of the violation, restitution may involve returning property, restoring a legal position or reversing a measure where that can lawfully and practically be done.
Compensation
Article 36 requires compensation for damage caused by the internationally wrongful act insofar as the damage is not made good by restitution.
Compensation covers financially assessable damage, including loss of profits insofar as such loss is established.
Causation is important at this stage. A finding that an internationally wrongful act occurred does not automatically make the responsible State financially liable for every remote economic consequence associated with the dispute.
The nature of the primary obligation, the causal connection and the evidence establishing the loss all influence the assessment of compensation.
Satisfaction
Some injuries cannot adequately be repaired by restitution or financial compensation.
Article 37 therefore provides for satisfaction to the extent that the injury cannot be made good by restitution or compensation.
Satisfaction may consist of acknowledgment of the breach, an expression of regret, a formal apology or another appropriate form.
It must not be out of proportion to the injury and may not take a form humiliating to the responsible State.
Interest and contribution to the injury
Article 38 provides for interest on a principal sum where necessary to ensure full reparation.
Article 39 requires account to be taken, when determining reparation, of contribution to the injury through the wilful or negligent action or omission of the injured State or of a person or entity in relation to whom reparation is sought.
The amount and form of reparation therefore involve legal questions distinct from the initial establishment of the internationally wrongful act.
Serious breaches of obligations arising under peremptory norms
Articles 40 and 41 establish additional consequences for a particularly serious category of internationally wrongful acts.
Article 40 applies where a State commits a serious breach of an obligation arising under a peremptory norm of general international law.
The Article defines a serious breach as one involving a gross or systematic failure by the responsible State to fulfil the obligation.
Article 41 requires States to cooperate through lawful means to bring such a serious breach to an end.
No State may recognize as lawful a situation created by the serious breach or render aid or assistance in maintaining that situation.
The duty of non-recognition and its relationship with the ICJ's Namibia advisory opinion are examined more fully in our article on recognition of States in international law.
Earlier work of the International Law Commission used the controversial language of “international crimes” of States. That terminology was not retained in the final 2001 Articles. The final framework instead refers to serious breaches of obligations arising under peremptory norms.
State responsibility should therefore not casually be equated with criminal punishment of a State.
Who may invoke State responsibility?
The existence of international responsibility and entitlement to invoke that responsibility should be distinguished.
Article 42 defines when a State is entitled to invoke responsibility as an injured State.
This includes breach of an obligation owed individually to that State.
It also includes certain breaches of obligations owed to a group of States or to the international community as a whole where the breach specially affects the State or is of such a character as radically to change the position of all the other States to which the obligation is owed regarding further performance.
Notice of the claim
Under Article 43, an injured State invoking responsibility must give notice of its claim to the responsible State.
It may specify the conduct the responsible State should take to cease a continuing wrongful act and the form that reparation should take.
Nationality of claims and exhaustion of local remedies
Article 44 preserves applicable rules relating to nationality of claims and exhaustion of local remedies.
Where a claim is one to which the local-remedies rule applies, available and effective local remedies must ordinarily be exhausted before responsibility may be invoked through that claim.
This requirement is particularly important in diplomatic-protection cases, but it should not be presented as a universal procedural condition applicable mechanically to every interstate claim.
Waiver and acquiescence
Article 45 provides that responsibility may no longer be invoked where the injured State has validly waived the claim or, through its conduct, is considered to have validly acquiesced in the lapse of the claim.
Several injured or responsible States
Article 46 provides that where several States are injured by the same internationally wrongful act, each may separately invoke the responsibility of the responsible State.
Article 47 addresses several States responsible for the same internationally wrongful act. Responsibility of each may be invoked, but an injured State cannot recover compensation exceeding the damage it suffered, and rights of recourse between responsible States are preserved.
Can a State that was not individually injured invoke responsibility?
Yes, in the circumstances specified by Article 48.
A State other than an injured State may invoke responsibility where the obligation breached is owed to a group of States including that State and is established for protection of a collective interest, or where the obligation is owed to the international community as a whole.
Such a State may claim cessation and, where appropriate, assurances and guarantees of non-repetition.
Article 48(2)(b) also provides for a claim seeking performance of the obligation of reparation in the interest of the injured State or the beneficiaries of the obligation breached.
An important qualification comes from the ILC commentary itself: it describes this aspect of Article 48(2)(b) concerning reparation as involving a measure of progressive development.
The provision should therefore not be presented as though every aspect of non-injured-State invocation and reparation was already an uncontested customary rule when the Articles were adopted.
Barcelona Traction and obligations erga omnes
The conceptual background to Article 48 includes the International Court of Justice's 1970 judgment in Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain).
The Court distinguished ordinary obligations owed to another State from obligations toward the international community as a whole. In relation to the latter, it explained that all States have a legal interest in their protection and used the expression obligations erga omnes.
Belgium v. Senegal and obligations erga omnes partes
A further example appears in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal).
In its 2012 judgment, the ICJ held that Belgium, as a party to the Convention against Torture, had standing to invoke Senegal's responsibility concerning obligations under the Convention whose performance was regarded as a common interest of the States parties.
The case provides an important practical illustration of how collective-interest obligations may affect standing even where a claimant State does not rely solely upon a conventional bilateral injury.
The extradition aspect of the case is discussed separately in our guide to extradition under international law.
Countermeasures
Countermeasures are measures that would otherwise be inconsistent with an international obligation owed by the injured State to the responsible State but whose wrongfulness may be precluded when they respond to an internationally wrongful act and satisfy the requirements of the State Responsibility Articles.
Purpose of countermeasures
Article 49 provides that an injured State may take countermeasures against the responsible State only to induce that State to comply with its obligations arising under Part Two.
Countermeasures are therefore directed toward compliance rather than punishment.
They are limited to temporary non-performance of international obligations owed by the injured State to the responsible State and should, as far as possible, be designed to permit performance of those obligations to resume.
Countermeasures cannot involve force
Article 50 expressly provides that countermeasures may not affect the obligation to refrain from the threat or use of force embodied in the United Nations Charter.
An armed reprisal cannot therefore be made lawful merely by describing it as a countermeasure.
Other protected obligations
Article 50 also protects obligations for the protection of fundamental human rights, humanitarian obligations prohibiting reprisals and other obligations arising under peremptory norms of general international law.
A State taking countermeasures remains bound by applicable dispute-settlement obligations and must respect the inviolability of diplomatic and consular agents, premises, archives and documents.
This last limitation connects State responsibility directly with the rules examined in our article on diplomatic immunity under international law.
Proportionality
Article 51 requires countermeasures to be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.
Proportionality is therefore a legal limitation even where the purpose of inducing compliance is otherwise satisfied.
Prior demand, notification and negotiations
Article 52 generally requires the injured State, before taking countermeasures, to call upon the responsible State to comply with its Part Two obligations, notify it of the decision to take countermeasures and offer to negotiate.
Urgent countermeasures necessary to preserve the injured State's rights may be taken as provided by Article 52(2).
What if the dispute is already before an international tribunal?
Article 52 contains an additional safeguard that is sometimes omitted from brief summaries.
Countermeasures may not be taken, and countermeasures already taken must be suspended without undue delay, where the internationally wrongful act has ceased and the dispute is pending before a court or tribunal with authority to issue decisions binding on the parties.
That restriction does not apply where the responsible State fails to implement the dispute-settlement procedures in good faith.
When must countermeasures terminate?
Article 53 requires countermeasures to be terminated as soon as the responsible State has complied with its obligations under Part Two in relation to the internationally wrongful act.
Countermeasures are therefore not intended to continue as permanent punishment after compliance has been achieved.
Measures by States other than an injured State
Article 54 must be read cautiously.
It does not formulate a general express authorization allowing every State entitled to invoke responsibility under Article 48 to take the same countermeasures available to an injured State under Article 49.
Instead, Article 54 states that the countermeasures chapter does not prejudice the right of a State entitled to invoke responsibility under Article 48 to take lawful measures against the responsible State to secure cessation and reparation in the interest of the injured State or beneficiaries of the breached obligation.
The ILC commentary acknowledged that practice concerning such measures was limited and left the matter to further development of international law.
Collective countermeasures by non-injured States should therefore not be presented as though every aspect of their legality were conclusively settled by ARSIWA.
Lex specialis and special regimes of responsibility
The State Responsibility Articles provide general rules, but they do not override specialized international regimes.
Article 55 expresses the principle of lex specialis. The Articles do not apply where and to the extent that the conditions for an internationally wrongful act, or the content or implementation of international responsibility, are governed by special rules of international law.
A treaty or other specialized regime may therefore establish its own rules concerning responsibility, remedies, procedures, attribution or standing.
Article 56 complements this rule by preserving applicable rules of international law for questions of State responsibility that the Articles themselves do not regulate.
State responsibility and individual responsibility under international law
State responsibility must be distinguished from the responsibility of individual persons.
Article 58 provides that the State Responsibility Articles are without prejudice to questions concerning the individual responsibility under international law of persons acting on behalf of a State.
In modern international law, this distinction is particularly important in relation to international crimes.
The same factual events may generate the international responsibility of a State while also giving rise to individual criminal responsibility of officials or other persons.
A State is not imprisoned or criminally sentenced like an individual defendant. Its responsibility produces the legal consequences governed by the applicable rules of State responsibility.
Individual prosecutions before institutions such as the International Criminal Court belong to a distinct legal framework.
State responsibility and responsibility of international organizations
The 2001 Articles concern the responsibility of States.
Article 57 provides that they are without prejudice to questions concerning the international responsibility of an international organization or the responsibility of a State for conduct of an international organization.
The International Law Commission subsequently completed a separate set of Articles on the Responsibility of International Organizations in 2011.
The two regimes are related but should not be treated as interchangeable.
Responsibility and harmful activities not prohibited by international law
State responsibility for internationally wrongful acts should also be distinguished from international rules dealing with risks and harmful consequences of activities that are not themselves prohibited by international law.
The 2001 State Responsibility Articles require an internationally wrongful act.
The International Law Commission has separately addressed subjects such as prevention of transboundary harm from hazardous activities and allocation of loss arising from such activities.
The expression “international liability” should therefore not automatically be used as a synonym for State responsibility in every context.
Important cases on State responsibility
The general rules become easier to understand when read alongside leading international decisions.
Factory at Chorzów (1928)
The Permanent Court of International Justice developed the classical principle of reparation for breach of an international obligation. Its formulation continues to influence Articles 31 and 34 to 36.
Corfu Channel (1949)
The ICJ's Corfu Channel judgment is important in relation to responsibility by omission.
The Court held Albania responsible for failing to warn British ships of the danger posed by a minefield in Albanian territorial waters in circumstances where the necessary knowledge was established.
The case demonstrates that responsibility may result from failure to perform an international obligation and is not confined to direct physical conduct by State officials.
Barcelona Traction (1970)
The case is important for the Court's distinction between ordinary bilateral obligations and obligations toward the international community as a whole, which it described as obligations erga omnes.
United States Diplomatic and Consular Staff in Tehran (1980)
The Tehran judgment demonstrates both responsibility for a State's own failure to fulfil protective obligations and the legal significance of a State subsequently adopting private conduct as its own.
Nicaragua v. United States (1986)
The judgment remains central to attribution of conduct by non-State armed groups and the effective-control standard.
Gabčíkovo-Nagymaros Project (1997)
The case provides important guidance concerning the exceptional doctrine of necessity and the strict conditions governing its invocation.
Bosnia and Herzegovina v. Serbia and Montenegro (2007)
The Genocide Convention judgment is important for attribution under the effective-control approach and for the distinction between responsibility for conduct attributed to a State and responsibility arising from the State's own failure to fulfil an obligation to prevent genocide.
Belgium v. Senegal (2012)
The judgment is important for standing in relation to obligations owed to all parties to a treaty protecting a common interest and provides a practical example relevant to the broader framework reflected in Article 48.
These and other international decisions can be explored through our guide to the International Court of Justice.
Current developments in State responsibility in 2026
The subject remains active within the International Law Commission.
Compensation for damage caused by internationally wrongful acts
At its 2025 session, the International Law Commission decided to include the topic Compensation for the damage caused by internationally wrongful acts in its programme of work and appointed Mārtiņš Paparinskis as Special Rapporteur.
During the Commission's seventy-seventh session in 2026, the Special Rapporteur presented his first report, A/CN.4/793.
The report reviewed the debate in the Sixth Committee and earlier work of the Commission and other international legal bodies, examined the scope, content and legal status of Article 36 of the State Responsibility Articles, and considered relevant judicial decisions and State practice concerning compensation.
The Commission discussed the report in plenary during July 2026 and adopted the relevant chapter of its session report on 29 July 2026. It also requested the Secretariat to prepare a memorandum on the topic for a future session.
This ongoing work has not converted Article 36 into a treaty provision or amended the 2001 State Responsibility Articles. It is a separate ILC project examining compensation in greater depth.
New ILC work on obligations erga omnes
A second development is particularly relevant to the law governing invocation of responsibility.
On 30 July 2026, the International Law Commission decided to include a new topic, Identification and legal consequences of obligations erga omnes in international law, in its programme of work and appointed Masahiko Asada as Special Rapporteur.
The new project is relevant to questions discussed in Article 48, including obligations owed to the international community as a whole, but it is a separate work programme and should not be treated as having already changed the text or legal status of Article 48.
Its development will be particularly important for future discussions of standing, collective interests and the consequences of breaches of obligations erga omnes.
Common misconceptions about State responsibility
A State is responsible only if material damage occurs
Incorrect as a general proposition. Article 2 identifies attribution and breach as the two general elements. Whether damage must be proved depends upon the particular primary obligation.
Every wrongful act by a citizen is attributable to the State
No. Private conduct requires an applicable basis of attribution. A State may separately incur responsibility for its own failure to prevent or respond to private conduct where an international obligation required it to act.
Only executive officials can engage State responsibility
No. Article 4 expressly includes legislative, executive, judicial and other State organs.
An official's conduct is not attributable if domestic law prohibited it
Not necessarily. Article 7 preserves attribution where the official acts in an official capacity even though authority has been exceeded or instructions violated.
Domestic law can justify a breach of international law
No. Article 3 provides that international law governs the characterization of the act as internationally wrongful.
Fault or intention is always necessary
No universal rule requires an intention to cause harm. Any fault, knowledge, due diligence, or mental element generally depends upon the content of the primary obligation.
Effective control is the only possible basis under Article 8
No. Article 8 refers separately to instructions, direction and control. The ICJ's effective-control jurisprudence is particularly relevant where attribution is asserted on the basis of control.
Article 16 simply requires knowledge
That statement is incomplete. The text expressly requires knowledge of the circumstances and the same-obligation condition, while the ILC commentary additionally describes the assistance as being given with a view to facilitating the wrongful act and actually contributing to it.
The ILC Articles are an international treaty
No. The General Assembly took note of the Articles and commended them to governments. They have not thereby become a universal treaty.
Self-defence suspends all other international obligations
No. Article 21 concerns lawful measures of self-defence, and applicable international humanitarian law and non-derogable human-rights obligations are not displaced merely because a State acts in self-defence.
State responsibility is the same as individual criminal responsibility
No. The two forms of responsibility are legally distinct even though the same facts may give rise to both.
Countermeasures permit armed retaliation
No. Article 50 expressly protects the prohibition of the threat or use of force.
Any State can freely impose countermeasures for an erga omnes breach
That proposition goes beyond Article 54. The Article preserves the possibility of lawful measures by certain States entitled to invoke responsibility under Article 48 but does not establish a fully settled general regime of collective countermeasures by non-injured States.
Necessity allows States to ignore inconvenient obligations
No. Article 25 establishes stringent conditions, including an essential interest, grave and imminent peril and the requirement that the act be the only way of safeguarding that interest within the limits of the Article.
Every breach of a peremptory norm automatically falls under Article 40
No. Article 40's additional regime applies to a serious breach of an obligation arising under a peremptory norm. Seriousness requires a gross or systematic failure to fulfil the obligation.
Conclusion
State responsibility provides the general legal framework for determining what follows when conduct attributable to a State fails to comply with international law.
Its starting point is Article 2 of the ILC Articles. An internationally wrongful act requires conduct attributable to the State and a breach of an international obligation binding upon it. The conduct may consist of an action or omission, while material damage and intention to cause harm are not universal additional elements independent of the primary rule.
Attribution is therefore central. Conduct of legislative, executive, judicial and other State organs is ordinarily attributable to the State. Persons or entities exercising delegated governmental authority may also engage responsibility. Private conduct may become attributable through instructions, direction, control or other specific attribution rules, but support or political alignment alone does not automatically transform every private act into an act of the State.
The State may also incur responsibility for its own omission where an international obligation required prevention, protection, warning, investigation or another form of due diligence.
Once responsibility arises, the underlying obligation does not simply disappear. Continuing wrongful conduct must cease, appropriate assurances of non-repetition may be required, and full reparation must be provided for injury caused by the internationally wrongful act through restitution, compensation, satisfaction or an appropriate combination of those forms.
Additional consequences apply to serious breaches of obligations arising under peremptory norms. States must cooperate through lawful means to bring such breaches to an end and must neither recognize as lawful situations created by them nor assist in maintaining those situations.
The Articles also distinguish injured States from other States entitled to invoke responsibility in protection of collective interests. Article 48 is particularly important in this respect, while the ILC commentary itself cautions that part of its reparation mechanism involved progressive development.
Countermeasures are likewise subject to strict limitations. They are intended to induce compliance, not punish. They may not involve force, must be proportionate and cannot suspend specified fundamental obligations. The position of non-injured States under Article 54 remains more carefully framed.
The 2001 Articles are not a universal treaty, but they remain the central organizing framework for the modern law of State responsibility. Their continuing relevance is reflected both in international jurisprudence and in the International Law Commission's renewed 2026 work on compensation and obligations erga omnes.
Primary authorities and further reading
The principal source is the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts (2001). The accompanying official ILC commentaries should be consulted where the wording, purpose, customary status or limits of a particular Article require closer examination.
Articles 1 to 3 set out the general principles. Articles 4 to 11 concern attribution. Articles 12 to 15 govern breach of an international obligation. Articles 16 to 19 address responsibility in connection with the act of another State.
Articles 20 to 27 deal with circumstances precluding wrongfulness. Articles 28 to 39 concern the consequences of responsibility and reparation. Articles 40 and 41 address serious breaches of obligations arising under peremptory norms.
Articles 42 to 48 govern invocation of responsibility. Articles 49 to 54 concern countermeasures and related measures. Articles 55 to 59 contain general provisions concerning special rules, matters not regulated by the Articles, international organizations, individual responsibility and the United Nations Charter.
Important judicial authorities include the Permanent Court of International Justice's Factory at Chorzów judgment and the International Court of Justice decisions in Corfu Channel, Barcelona Traction, United States Diplomatic and Consular Staff in Tehran, Military and Paramilitary Activities in and against Nicaragua, Gabčíkovo-Nagymaros Project, Application of the Genocide Convention and Questions relating to the Obligation to Prosecute or Extradite.
For current developments, the International Law Commission's official materials on compensation for damage caused by internationally wrongful acts record the work begun under Special Rapporteur Mārtiņš Paparinskis and the consideration of his first report during the Commission's 2026 session.
These materials should be considered together with the particular primary international obligation involved in the dispute, any applicable special regime and relevant subsequent international jurisprudence.
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