Meaning and Basis

State Responsibility is a fundamental principle of public international law establishing that whenever a state commits an internationally wrongful act against another state, it is held responsible for that act and must make reparation for any injury caused. It is the necessary corollary of a right; all rights of an international character involve international responsibility. This principle ensures that states honour their international obligations and provides a framework for addressing breaches.

The rules of state responsibility are themselves secondary rules. They do not define the content of the obligations (e.g., the prohibition of torture). Instead, they determine the legal consequences of failing to fulfil those primary obligations. The most authoritative codification of these rules is found in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), adopted by the International Law Commission (ILC) in 2001. While not a treaty, ARSIWA is widely regarded as reflecting customary international law.

The basis for this principle was articulated by the Permanent Court of International Justice in the landmark Chorzów Factory case (1928), where the court stated 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."

Attribution of wrongful acts to the State

A state is an abstract legal entity. It can only act by and through individuals and groups of individuals. Therefore, a central question in state responsibility is determining when an act committed by a person can be considered an "act of the State." This legal link is known as attribution or imputation. The rules of attribution define the scope of a state's responsibility for the conduct of others.

ARSIWA provides a comprehensive set of rules for attribution. The general principle is that a state is responsible for the conduct of its organs and officials, even when they act outside their authority, but is generally not responsible for the conduct of private individuals, unless a specific link to the state can be established.

Elements of State Responsibility

According to Article 2 of ARSIWA, there is an internationally wrongful act of a State when conduct consisting of 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.

These two elements—attribution and breach—are the essential conditions for state responsibility to arise. It is important to note that fault (intent or negligence) and damage are not generally considered necessary elements for an act to be wrongful, although they may be relevant in determining the extent of reparation.

Attributable act or omission

This is the subjective element. As discussed previously, the conduct must be linked to the state through the rules of attribution. The conduct can be either an action (commissio) or a failure to act (omissio).

• Action: For example, the act of a state's military in shooting down a foreign civilian airliner.

• Omission: For example, the failure of a state to protect a foreign embassy from being attacked by a mob, or a failure to warn other states of a known hazard in its territorial waters (as in the Corfu Channel case).

The conduct must be attributable to the state. If the act was committed by a purely private individual with no connection to the state, the first element is not met, and the state is not responsible for the act itself (though it might be responsible for a separate omission, such as failing to prevent or punish the individual's act).

Breach of an international obligation

This is the objective element. The conduct attributable to the state must violate a legal obligation that the state owes under international law. This is defined in Article 12 of ARSIWA, which states that there is a breach when an act of that State is "not in conformity with what is required of it by that obligation, regardless of its origin or character."

Key points regarding this element:

• Source of Obligation: The source is irrelevant. The obligation can arise from a treaty, a rule of customary international law, a binding decision of an international organization, or a general principle of law.

• Irrelevance of Domestic Law: A state cannot justify its failure to comply with an international obligation by invoking its own domestic law. Article 3 of ARSIWA makes it clear that the characterization of an act as internationally wrongful is governed by international law alone.

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Conduct of State organs

The most fundamental and straightforward rule of attribution is that a state is responsible for the conduct of its own organs. This principle, codified in Article 4 of the ILC's Articles on State Responsibility (ARSIWA), forms the bedrock of state responsibility. A state, being an abstract entity, acts through its organs, and their actions are legally considered the actions of the state itself.

Key Aspects of Article 4:

• Broad Definition of "Organ": The term "organ" is defined broadly to include any person or entity which has that status in accordance with the internal law of the State. This encompasses all branches of government:

  • Legislative: The passing of a law that violates a treaty obligation.
  • Executive: The actions of police, military, or government officials.
  • Judicial: A decision by a court that results in a denial of justice to a foreign national.

• All Levels of Government: The rule applies regardless of the organ's position in the state's structure. It covers both central government organs (e.g., a national ministry) and organs of a local or regional unit of the state (e.g., a state police force in a federal system like India, or a municipal government).

• Ultra Vires Acts (Article 7): Importantly, the state is also responsible for the conduct of its organs even if they act outside their competence or contrary to their instructions (ultra vires). As long as the official is acting with the apparent authority of their position, their wrongful act is attributable to the state. For example, if a police officer tortures a foreign detainee in violation of national law and police regulations, the state is still responsible on the international plane.

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Conduct of persons or entities exercising elements of governmental authority

Modern states often delegate public functions to private or semi-private entities. Article 5 of ARSIWA addresses this reality by attributing the conduct of such entities to the state when they are exercising "elements of governmental authority."

This rule applies to persons or entities that are not state organs under Article 4 but are nonetheless empowered by the law of the State to exercise governmental functions. This ensures that a state cannot avoid its international responsibilities simply by outsourcing its public tasks.

Key Conditions for Attribution under Article 5:

1. Empowered by Law: The entity must be legally authorized by the state to perform the specific function.

2. Exercise of Governmental Authority: The act in question must be a performance of a governmental function, not a purely commercial or private activity. Governmental functions are those typically performed by the state, such as law enforcement, detention, or immigration control.

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Conduct carried out under the direction or control of the State

A state can also be held responsible for the conduct of private individuals or groups if they are acting as de facto agents of the state. Article 8 of ARSIWA provides that the conduct of a person or group shall be considered an act of a State if the person or group is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

This rule is particularly relevant in situations involving state support for non-state actors like paramilitary groups, insurgents, or private individuals.

The "Effective Control" Test

The International Court of Justice (ICJ) has established a very high threshold for attributing conduct under this rule. In the Nicaragua v. United States case (1986), the ICJ examined whether the acts of the Nicaraguan contra rebels were attributable to the US, which financed, trained, and equipped them.

The Court ruled that for the conduct to be attributable, the state must have had "effective control" over the specific military or paramilitary operation during which the alleged violations occurred. Simply financing, organizing, training, and supplying the group was not sufficient to establish such control. This strict test was later reaffirmed in the Bosnian Genocide case (2007).

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Conduct adopted and recognized by the State as its own

A state can also become responsible for a purely private act after the fact. Article 11 of ARSIWA states that conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State if and to the extent that the State acknowledges and adopts the conduct in question as its own.

This is a rule of retroactive attribution. The conduct, which was initially private, is transformed into an act of the state by the state's own subsequent endorsement.

Requirements for Adoption:

• Clear and Unequivocal Endorsement: The state's acknowledgement and adoption must be clear and unambiguous. It cannot be a mere statement of support or sympathy.

• Adopting the Act Itself: The state must adopt the specific conduct as its own, not just express general approval of the objectives of the actors.

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Circumstances Precluding Wrongfulness

In certain specific situations, an act by a state that would normally be considered a breach of an international obligation is not treated as wrongful. These situations, outlined in Chapter V of the ILC's Articles on State Responsibility (ARSIWA), are known as "circumstances precluding wrongfulness." They function as defences or justifications for non-performance of an obligation. However, it is a crucial rule that none of these circumstances can excuse the violation of a peremptory norm of general international law (jus cogens), such as the prohibition of genocide, slavery, or torture.

Consent

(Article 20, ARSIWA) Valid consent by a state to the commission of a given act by another state precludes the wrongfulness of that act in relation to the consenting state. For example, if State A consents to State B's troops entering its territory for joint military exercises, State A cannot later claim that State B violated its territorial sovereignty. The consent must be validly given (i.e., not coerced) and the act must remain within the limits of the consent given.

Self-defence

(Article 21, ARSIWA) The wrongfulness of an act is precluded if it constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations. Article 51 of the UN Charter recognizes the inherent right of individual or collective self-defence if an armed attack occurs. The use of force in self-defence must adhere to the principles of necessity and proportionality. Any action taken under the claim of self-defence that does not meet these strict UN Charter requirements is not lawful and its wrongfulness is not precluded.

Countermeasures

(Article 22, ARSIWA) Countermeasures are non-forcible acts taken by an injured state against a responsible state to induce the latter to comply with its obligations. These acts would otherwise be illegal but their wrongfulness is precluded because they are a response to a prior internationally wrongful act. For example, if State A breaches a trade treaty with State B, State B might suspend its own obligations under the same treaty as a countermeasure. Countermeasures must be proportionate, temporary, and must cease as soon as the responsible state complies with its obligations. They cannot involve the use of force.

Force Majeure

(Article 23, ARSIWA) Force majeure describes a situation where a state is unable to perform its obligation due to the occurrence of an irresistible force or an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation. It is a situation of absolute impossibility. For example, a state aircraft that has violated another state's airspace due to loss of control caused by extreme weather would be a case of force majeure. This defence is not available if the state contributed to the situation or had assumed the risk of its occurrence.

Distress

(Article 24, ARSIWA) Distress precludes wrongfulness where the author of the act has no other reasonable way, in a situation of distress, of saving the author's life or the lives of other persons entrusted to the author's care. Unlike force majeure, where performance is materially impossible, in distress, a choice to act in violation of an obligation exists, but it is a choice between compliance and saving human lives. The classic example is a ship or aircraft entering a state's territory without authorization to seek shelter from a life-threatening storm.

State of Necessity

(Article 25, ARSIWA) This is the most exceptional and narrowly defined circumstance. A state may invoke necessity to justify a breach of an obligation only if the act is the only way for the State to safeguard an essential interest against a grave and imminent peril, and it does not seriously impair an essential interest of the state or states towards which the obligation exists, or of the international community as a whole. The peril must be grave and imminent, and the act must be the "only way" to respond. The ICJ, in the Gabčíkovo-Nagymaros Project case, confirmed the existence of this rule in customary law but emphasized its exceptional nature and the strict conditions for its invocation.

Consequences of Wrongful Act

When an internationally wrongful act is committed and its wrongfulness is not precluded, specific legal consequences arise for the responsible state. These consequences are aimed at re-establishing the legal relationship that was disturbed by the breach and ensuring that the injured state is made whole.

Cessation of wrongful act

The first and most immediate obligation of the responsible state is to cease the wrongful act, if it is continuing. This is a fundamental requirement to bring the state back into compliance with international law. For instance, if a state is unlawfully occupying another state's territory, its primary obligation is to end the occupation.

In addition, the responsible state may be required to offer assurances and guarantees of non-repetition, if circumstances so require. This is to ensure that the breach will not happen again in the future.

Reparation (Restitution, Compensation, Satisfaction)

The responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act. The purpose of reparation is, as far as possible, to wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Reparation can take one or a combination of three forms, as outlined in the ARSIWA.

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