State Responsibility

Two things the Articles deliberately leave out, and an examiner rewards a candidate who notices.

Damage is not an element. Article 2 requires attribution and breach and says nothing about injury. Whether damage is needed depends on the primary rule: a treaty may require harm, and many do not.

Fault is not an element. There is no general requirement of intention or negligence. Again it depends on the primary rule. The older writers argued for a general fault requirement and the Articles do not adopt one.

Attribution: articles 4 to 11

A State is an abstraction. It acts through people, and attribution is the set of rules deciding whose acts count as the State's.

Article 4: State organs. The conduct of any State organ is attributable, whether the organ exercises legislative, executive, judicial or any other functions, whatever its position in the organisation of the State, and whether it is an organ of the central government or of a territorial unit. So the acts of a State legislature, a State police force and a district court are all India's acts internationally. Federal structure is no answer: a State cannot plead that the wrong was done by a province.

Article 5: entities exercising governmental authority. The conduct of a person or entity which is not an organ but is empowered by the law of the State to exercise elements of governmental authority is attributable, provided it was acting in that capacity. This covers a privatised prison, a delegated regulator, a private airline exercising immigration powers.

Article 6: organs placed at the disposal of a State. Conduct of an organ lent by one State to another is attributable to the borrowing State if it is acting in the exercise of that State's governmental authority.

Article 7: excess of authority. The conduct of an organ, or of a person or entity empowered to exercise governmental authority, is attributable even if it exceeds its authority or contravenes instructions. This is the ultra vires rule and it is important: a soldier who disobeys orders still engages the State, because otherwise every State could disclaim every wrong by pointing to a standing order against it.

Article 8: direction or control. The conduct of a person or group is attributable if they are in fact acting on the instructions of, or under the direction or control of, the State. How much control is required has been litigated at length, and the Articles do not settle it.

Article 9: absence or default of official authority. Conduct of a person or group exercising elements of governmental authority in the absence or default of the official authorities, in circumstances calling for their exercise, is attributable. This is the collapsed-State case.

Article 10: insurrectional movements. The conduct of an insurrectional movement which becomes the new government is attributable to the State, and so is the conduct of a movement which succeeds in establishing a new State.

Article 11: acknowledgment and adoption. Conduct not otherwise attributable is nevertheless attributable if and to the extent that the State acknowledges and adopts the conduct as its own. That article was written out of the case below.

The case that made article 11

Facts. United States Diplomatic and Consular Staff in Tehran (United States v. Iran), ICJ Reports 1980, page 3, judgment of 24 May 1980. On 4 November 1979 militants attacked and occupied the United States Embassy in Tehran and took its diplomatic and consular staff hostage; the Consulates at Tabriz and Shiraz were also attacked. The United States instituted proceedings on 29 November 1979 and the Court indicated provisional measures on 15 December 1979. Iran did not appear. Iranian authorities afterwards described the Embassy as a centre of espionage, declared the hostages would remain under arrest until the former Shah and his property were returned, and forbade all negotiation.

Held. Iran had violated and was still violating obligations owed to the United States, those violations engaged its responsibility, the hostages were to be released and the premises restored, and Iran was under an obligation to make reparation. The Court divided the events into two phases. In the first phase the initial attack was not directly imputable to Iran; but Iran was fully aware of its obligations under the Vienna Convention on Diplomatic Relations 1961, articles 22(2), 24, 25, 26, 27 and 29, and under the Vienna Convention on Consular Relations 1963, had the means at its disposal to perform them, and completely failed to do so. In the second phase, once organs of the Iranian State had given approval to the acts complained of and decided to perpetuate them as a means of pressure on the United States, those acts were transformed into acts of the Iranian State: the militants became agents of that State, which itself became internationally responsible for their acts. Iran's allegation that the United States had carried out criminal activities in Iran was no defence, because diplomatic law itself provides the remedies of breaking off diplomatic relations and declaring members of a mission persona non grata.

Why it matters. It is the clearest illustration of the two ways a State becomes responsible for what private persons do. It failed to prevent, which is an omission of its own and a breach of a duty of protection. And it afterwards adopted, which turned the private acts into its own. Article 11 of the ILC Articles is that second holding in statutory form.

Breach: articles 12 to 15

Article 12. There is a breach of an international obligation 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. Origin means treaty, custom or general principle; character means bilateral or multilateral.

Article 13. An act does not constitute a breach unless the State is bound by the obligation at the time the act occurs. That is the intertemporal principle applied to responsibility, and it is the counterpart of the rule in [Acquisition of State Territory].

Article 14. Extension in time. A breach by an act not having a continuing character occurs at the moment the act is performed; a breach having a continuing character extends over the whole period during which the act continues and remains not in conformity; and a breach of an obligation to prevent a given event occurs when the event occurs and extends over the whole period during which the event continues.

Article 15. A breach consisting of a composite act occurs when the action or omission occurs which, taken with the others, is sufficient to constitute the wrongful act.

Responsibility for the acts of another State: articles 16 to 19

Article 16. A State which aids or assists another in the commission of an internationally wrongful act is responsible if it does so with knowledge of the circumstances and the act would be wrongful if committed by it.

Article 17. A State which directs and controls another in the commission of a wrongful act is responsible on the same conditions.

Article 18. A State which coerces another to commit an act is responsible if the act would, but for the coercion, be wrongful and the coercing State acts with knowledge of the circumstances.

Article 19 provides that the chapter is without prejudice to the responsibility of the State which commits the act and of any other State.

The duty that Corfu Channel states

One primary rule appears so often in responsibility problems that it belongs here.

Facts. Corfu Channel Case (United Kingdom v. Albania), ICJ Reports 1949, page 4, judgment of 9 April 1949. On 22 October 1946 two British destroyers struck mines in a swept channel in Albanian waters in the North Corfu Strait; forty-five officers and sailors were killed and forty-two wounded. On 12 and 13 November the British Navy swept the channel against Albania's expressed refusal and cut twenty-two moored mines.

Held. By eleven votes to five, Albania was responsible and owed compensation. The Court did not find that Albania laid the mines or connived at their laying: a charge of such gravity requires a degree of certainty not reached. It held instead that the minefield could not have been laid without Albania's knowledge, and that knowledge carried a duty to notify shipping and to warn the ships passing on 22 October; nothing was attempted, and those grave omissions engaged Albania's responsibility. On proof, a State victim of a wrong committed inside another State's exclusive control must be allowed more liberal recourse to inferences of fact and circumstantial evidence, which carries special weight when based on a series of facts linked together and leading logically to a single conclusion. The Court separately held that the British sweep violated Albanian sovereignty and could not be justified as intervention or self-help.

Why it matters here. Responsibility can rest on an omission, and knowledge of a danger in one's own territory creates a duty to act. It is also the leading authority on the standard of proof where the evidence lies inside the respondent State, which is a problem in almost every responsibility case.

A worked example

A mob in State M attacks the embassy of State N, burns cars and injures staff. State M's police, warned twice, stay away. The next day State M's foreign minister says on television that the mob expressed the people's just anger and that the embassy will not be protected until State N changes its policy. Two weeks later State M's own army demolishes the embassy's outbuilding.

The mob's attack. Not attributable under articles 4 to 8: a mob is not an organ, exercises no governmental authority, and acts on nobody's instructions.

But State M is still responsible, and this is the Tehran first-phase reasoning. It was under a primary duty to protect the mission, its police were warned, it had the means, and it did nothing. The omission is its own conduct under article 4, and article 2 requires only attribution and breach.

The minister's statement. Now article 11 operates. If the State acknowledges and adopts the conduct as its own, the mob's acts become the State's, which is precisely what the Court held in Tehran when organs of the State approved and decided to perpetuate.

The army's demolition. Attributable directly under article 4, the army being a State organ. If the soldiers acted against orders, article 7 still attributes it, because conduct in an official capacity is attributable even where it exceeds authority or contravenes instructions.

State M says its own law authorised all of it. Article 3 answers that: characterisation is governed by international law and is not affected by the characterisation of the same act as lawful by internal law.

State M says State N's diplomats were spying. The Tehran answer applies: diplomatic law is a self-contained regime with its own remedies, breaking off relations and persona non grata, and the alleged activities are no defence.

Proof. Most of the evidence is inside State M. Corfu Channel allows State N a more liberal recourse to inferences of fact and circumstantial evidence, given special weight where a series of linked facts leads logically to a single conclusion.

Distinctions table

What it does NOT mean

Damage is not required. Article 2 lists attribution and breach only. Whether injury is needed depends on the primary rule.

Fault is not required. There is no general requirement of intention or negligence in the Articles.

A federal State cannot blame its provinces. Article 4 attributes the conduct of an organ of a territorial unit to the State.

An ultra vires act is still the State's. Article 7 is explicit, and the contrary rule would let every State disclaim every wrong.

The Articles are not a treaty. They are the Commission's text, commended by the General Assembly, and authoritative because much of their content is custom.

Limits and criticism

Article 8's threshold of control is unsettled. How much direction or control makes a private group's conduct the State's has divided international tribunals, and the Articles record the disagreement rather than resolving it. It is the single most litigated question in the law of attribution.

The absence of a fault requirement is disputed. Writers in the older tradition argued that responsibility should require fault, and the Articles' answer, that it depends on the primary rule, is accurate and leaves the question to be fought again under every primary rule.

The scheme presumes a bilateral relationship between a wrongdoing State and an injured State, which fits a boundary dispute and fits obligations owed to everybody far less well. That is why articles 40, 41 and 48, dealt with in the next chapter, had to be added.

Quick revision

ILC Articles on Responsibility of States for Internationally Wrongful Acts 2001: not a treaty, largely custom, and secondary rules throughout.

Article 1: every internationally wrongful act of a State entails its international responsibility. Article 2: two elements, conduct attributable to the State and constituting a breach of an international obligation. Article 3: characterisation is governed by international law, unaffected by internal law.

No damage requirement and no fault requirement in the Articles themselves.

Attribution: article 4 organs, including any territorial unit; 5 entities exercising governmental authority; 6 organs lent by another State; 7 ultra vires conduct still attributable; 8 direction or control; 9 absence or default of official authority; 10 insurrectional movements that become the government; 11 acknowledgment and adoption.

Breach: 12 non-conformity whatever the origin or character; 13 the obligation must be in force at the time; 14 continuing and preventive breaches; 15 composite acts.

Involvement in another State's act: 16 aid or assistance, 17 direction and control, 18 coercion, 19 without prejudice.

Tehran, ICJ Reports 1980, page 3: failure to protect in phase one; and in phase two, once organs of the State approved and decided to perpetuate, the acts were transformed into acts of the Iranian State and the militants became agents of that State. Diplomatic law is a self-contained regime.

Corfu Channel, ICJ Reports 1949, page 4: responsibility for an omission, knowledge creating a duty to warn, and a more liberal recourse to inferences and circumstantial evidence where the evidence lies within the respondent's control.

Test yourself

1. State the two elements of an internationally wrongful act.

Article 2 of the ILC Articles provides that 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. Attribution and breach are therefore the only two elements. Damage and fault are not required by the Articles, and whether either is needed depends on the content of the primary rule alleged to have been broken.

2. Are the acts of a State's police force in one of its provinces attributable to the State?

Yes. Article 4 attributes the conduct of any State organ, whether it exercises legislative, executive, judicial or any other functions, whatever its position in the organisation of the State, and whether it is an organ of the central government or of a territorial unit of the State. A federal State cannot answer an international claim by pointing to the division of powers in its own constitution, and article 3 independently prevents it from relying on the characterisation of the act as lawful under internal law.

3. A soldier disobeys standing orders and shoots a foreign diplomat. Is the State responsible?

Yes. Article 7 provides that the conduct of an organ of a State, or of a person or entity empowered to exercise elements of 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. The rule exists because the contrary position would let every State escape responsibility by pointing to an instruction that had been disobeyed.

4. Explain the two phases of the Tehran case and the rule each produced.

In the first phase, the militants who seized the Embassy on 4 November 1979 were not organs of Iran and their attack was not directly imputable to it; Iran was nevertheless responsible because it was fully aware of its obligations of protection under the Vienna Conventions, had the means to perform them, and completely failed to do so. That is responsibility for an omission of the State's own. In the second phase, once organs of the Iranian State approved the acts and decided to perpetuate them as a means of pressure, those acts were transformed into acts of the Iranian State and the militants became its agents. That is the rule now in article 11 of the ILC Articles: conduct is attributable if and to the extent that the State acknowledges and adopts it as its own.

5. Can a State plead its own law as a defence to an international claim?

No. Article 3 of the ILC Articles provides that the characterisation of an act of a State as internationally wrongful is governed by international law, and is not affected by the characterisation of the same act as lawful by internal law. Article 32 states the same for the consequences of responsibility, and article 27 of the Vienna Convention on the Law of Treaties states it for treaty performance. If it were otherwise every State could legislate itself out of every obligation.

6. What does Corfu Channel add to the law of responsibility?

Two things. First, that responsibility may rest on an omission: Albania was not shown to have laid the mines or connived at their laying, but the minefield could not have been laid without its knowledge, and knowledge carried a duty to notify shipping and warn the vessels passing, which it did not discharge. Second, a rule of proof: where the wrong is committed within the exclusive territorial control of the respondent State, the victim must be allowed a more liberal recourse to inferences of fact and circumstantial evidence, and such indirect evidence carries special weight where it rests on a series of facts linked together and leading logically to a single conclusion.