The Articles on Responsibility of States for Internationally Wrongful Acts (2001) — an instrument study

Part One asks whether a wrong has been committed: what a wrongful act is (Chapter I), when conduct is attributed to the State (Chapter II), what a breach is and when it occurs in time (Chapter III), responsibility in connection with another State's act (Chapter IV), and what excuses exist (Chapter V). Part Two asks what follows: cessation, reparation, and the special consequences of serious breaches of peremptory norms. Part Three asks who may complain and what self-help is permitted: invocation, and countermeasures.

Article 1. "Every internationally wrongful act of a State entails the international responsibility of that State." One sentence, and it is the foundation. Note what it does not require: no damage, no fault, no injury to a national. Those questions live elsewhere.

Article 2 supplies the two elements. There is an internationally wrongful act 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." Attribution and breach. Every responsibility problem is solved by taking them in that order.

Article 3 insulates the international standard from domestic law: the characterisation of an act as internationally wrongful is governed by international law, and "Such characterization is not affected by the characterization of the same act as lawful by internal law."

Article 4, organs. The conduct of any State organ is an act of the State, "whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State." The last clause matters in federations: the acts of a State government engage the Union's responsibility.

Article 5, delegated authority. A person or entity not an organ but empowered by law to exercise elements of governmental authority acts for the State, "provided the person or entity is acting in that capacity in the particular instance."

Article 6, organs lent by another State. Attributed to the receiving State if the organ acts in the exercise of elements of the governmental authority of the State at whose disposal it is placed.

Article 7, ultra vires. Conduct in an official capacity is attributed "even if it exceeds its authority or contravenes instructions." This is the rule that prevents a State from disclaiming its own police.

Article 8, instructions, direction or control. Conduct of a person or group is an act of the State "if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct." The Court's gloss on the standard of control is effective control, from the Nicaragua judgment, where financing, training, equipping and planning were held insufficient.

Article 9, default of authorities. Conduct of persons in fact exercising elements of governmental authority in the absence or default of the official authorities, in circumstances calling for the exercise of those elements.

Article 10, insurrectional movements. The conduct of a movement which becomes the new government is attributed to that State; a movement which succeeds in establishing a new State binds the new State.

Article 11, acknowledgment and adoption. Conduct not otherwise attributable "shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own." This is the article the Tehran Hostages case illustrates: the militants' initial attack was not imputable to Iran, but the Ayatollah's approval and the decision to perpetuate the occupation translated it into an act of the State.

Article 12 defines a breach as conduct not in conformity with what is required, "regardless of its origin or character". Treaty, custom, unilateral undertaking: it makes no difference.

Article 13 fixes the intertemporal rule: no breach unless the State is bound by the obligation at the time the act occurs.

Article 14 distinguishes the instantaneous from the continuing breach. A non-continuing act breaches at the moment it is performed "even if its effects continue"; a continuing act breaches over the entire period during which it continues. A breach of an obligation to prevent occurs when the event occurs and extends while it continues.

Article 15 covers composite acts: the breach occurs when the act which, taken with the others, is sufficient to constitute the wrongful act occurs, and extends over the whole series.

Articles 16, 17 and 18 deal with aid or assistance, direction and control, and coercion. Each requires knowledge of the circumstances, and each except coercion requires that the act would be wrongful if committed by the assisting or directing State. Coercion is different: the coercing State is responsible if the act would, but for the coercion, be wrongful for the coerced State.

Six of them: consent (Article 20), self-defence (Article 21), countermeasures (Article 22), force majeure (Article 23), distress (Article 24) and necessity (Article 25).

Two of the six deserve care. Force majeure is "the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation." Necessity is framed negatively, and the drafting shows how narrow it is: necessity "may not be invoked" unless the act "(a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) 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." Even then it is barred where the obligation excludes it or the State contributed to the situation.

Two limits apply to the whole chapter. Article 26: nothing precludes the wrongfulness of an act conflicting with a peremptory norm. Article 27: invoking a circumstance is without prejudice to compliance once it ceases, and to "The question of compensation for any material loss caused by the act in question."

Article 29, the consequences do not affect the continued duty of performance. Article 30, the responsible State must cease a continuing act and offer appropriate assurances and guarantees of non-repetition if circumstances so require. Article 31, "The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act", injury including "any damage, whether material or moral". Article 32, internal law is no justification.

Article 34 names the three forms: "restitution, compensation and satisfaction, either singly or in combination".

• Restitution (35) re-establishes the situation existing before the act, unless materially impossible or a burden out of all proportion to the benefit compared with compensation.
• Compensation (36) covers "any financially assessable damage including loss of profits insofar as it is established", so far as not made good by restitution.
• Satisfaction (37) operates where the injury cannot be made good otherwise, and may consist in "an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality." It must not be out of proportion to the injury and "may not take a form humiliating to the responsible State."

Article 38 makes interest payable where necessary to ensure full reparation, running from the date the principal should have been paid. Article 39 requires account to be taken of contribution to the injury by the injured State's wilful or negligent act or omission.

Chapter III, Articles 40 and 41, deals with serious breaches of peremptory norms. A breach is serious if it "involves a gross or systematic failure by the responsible State to fulfil the obligation." The consequences fall on all States: they "shall cooperate to bring to an end through lawful means any serious breach", and "No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation."

Article 42 defines the injured State: one owed the obligation individually, or specially affected as a member of a group or of the international community, or where the breach is "of such a character as radically to change the position of all the other States to which the obligation is owed".

Article 44 states two familiar bars to admissibility: the rule on the nationality of claims, and the rule of exhaustion of local remedies where it applies.

Article 48 is the innovation. A State other than an injured State may invoke responsibility where the obligation breached is owed to a group of States and established for the protection of a collective interest, or is owed to the international community as a whole. Such a State may claim cessation, assurances of non-repetition, and performance of the obligation of reparation in the interest of the injured State or the beneficiaries. This is the erga omnes idea given procedural form.

Countermeasures, Articles 49 to 54. They may be taken only to induce compliance, are "limited to the non-performance for the time being of international obligations of the State taking the measures", and must so far as possible permit resumption of performance. Article 50 puts four categories beyond their reach: the prohibition of the threat or use of force, obligations for the protection of fundamental human rights, humanitarian obligations prohibiting reprisals, and other peremptory norms; and the State taking countermeasures must still respect dispute settlement procedures and the inviolability of diplomatic and consular agents, premises, archives and documents. Article 51 requires proportionality: countermeasures "must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question." Article 52 requires prior demand, notification and an offer to negotiate, subject to urgent countermeasures; and requires suspension once the act has ceased and the dispute is before a tribunal with binding authority.

Answer any responsibility problem in this order, naming the article at each step.

1. Attribution — Articles 4 to 11. Identify the actor and pick the right rule.
2. Breach — Articles 12 to 15. Was the obligation in force, and when did the breach occur or does it continue?
3. Excuse — Articles 20 to 27. Any circumstance precluding wrongfulness, subject to Articles 26 and 27.
4. Consequences — Articles 30 to 39. Cessation, assurances, and the right form of reparation.
5. Who may invoke and with what self-help — Articles 42, 44, 48 and 49 to 54.

The leading illustrations are Corfu Channel for omission and knowledge, Nicaragua for the control standard under Article 8, Tehran Hostages for acknowledgment and adoption under Article 11, and LaGrand and Jadhav for cessation, assurances and a remedy beyond apology.