State Responsibility

In one line

A State that breaks an international obligation is responsible for it, and the whole subject is the working out of what that means.

In the wording a student can write in an exam: every internationally wrongful act of a State entails the international responsibility of that State. There is an internationally wrongful act 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. Those are the two elements, attribution and breach, and they are stated in articles 1 and 2 of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts 2001.

What the Articles are, and what they are not

They are not a treaty. The International Law Commission adopted them in 2001 and the General Assembly took note of them and commended them to governments. No convention has been concluded on them.

They are treated as the law all the same. The International Court and other tribunals cite them constantly, and a great deal of their content is a statement of custom. They are, in the language of [Judicial Decisions and the Writings of Jurists], a subsidiary means of the most authoritative kind: the collective work of a body established by the General Assembly under article 13 of the Charter.

They are secondary rules, not primary ones. This is the distinction on which the whole scheme is built and it is worth stating carefully. Primary rules say what States must do: do not use force, do not pollute, protect embassies. Secondary rules say what follows when a primary rule is broken: who is responsible, to whom, and what must be done about it. The Articles are secondary rules throughout, which is why they never tell you whether any particular conduct is lawful.

The foundation: articles 1 to 3

Article 1. Every internationally wrongful act of a State entails the international responsibility of that State. That is the Chorzow principle in statutory form, and the case is worked in [General Principles of Law Recognised by Civilised Nations]: it is a principle of international law, or even of law in general, that any breach of an engagement involves an obligation to make reparation.

Article 2. 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. Two elements, and both must be present.

Article 3. The characterisation of an act of a State as internationally wrongful is governed by international law, and such characterisation is not affected by the characterisation of the same act as lawful by internal law. This is the responsibility counterpart of article 27 of the Vienna Convention, dealt with in [International Law and Municipal Law]: a State cannot make its conduct lawful by legislating.