Anthony Aust. Handbook of International Law
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‘responsible state’
the state which caused, or is believed to have caused, the injury;
‘act’
includes on omission;
‘person’
includes a legal person, such as a corporation and other legal entities.
(Unless otherwise indicated, references to numbered Articles or to the Commentary are to the ILC’s
final draft Articles and the related paragraphs of its Commentary.)
General matters
Three general points need to be made. First, Article 55 makes it clear that the Articles are residual in
the sense that they do not apply ‘where and to the extent that the conditions for the existence of an
internationally wrongful act, or the content or implementation of the international responsibility of a
state, are governed by special rules of international law’. Such lex specialis includes treaty
provisions that: make certain conduct lawful; provide how responsibility is to be apportioned for
certain aspects of reparation (Article of the Convention on the International Liability for Damage
Caused by Space Objects 1972 provides for joint and several liability for damage to a third state
caused by a collision between space objects launched by two states, and for strict and fault
liability);
8
or provide a specific mechanism to settle questions of responsibility and reparation, the
WTO system making special provision for the consequences of breaches of its rules.
9
Secondly, Article 56 makes it clear also that customary international law will continue to apply to
matters not covered by the Articles, so leaving open the development of the law of state
responsibility, such as liability for the injurious consequences of acts not prohibited by international
law.
10
It also has the effect of preserving those legal effects of a breach covered by the law of
treaties or another area of international law.
Thirdly, the Articles are without prejudice to the UN Charter, Article 103 of which provides that
obligations under it prevail over any other
8. 961 UNTS 187 (No. 13810); ILM (1971) 965; UKTS (1974) 16; TIAS 7762. For a list of other treaties
providing for absolute or strict liability, see Oppenheim, pp. 510–11. See also Article 41 on just
satisfaction in the (amended) European Convention for Human Rights (www.echr.coe.int).
9. See pp. 382 et seq above.
10. For current ILC work on this topic, see www.un.org/law/ilc/.
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treaty obligations.
11
The purpose of Article 59 is to make it clear that the Articles will not prejudice
any action by the United Nations concerning compensation by a state.
12
The internationally wrongful act of a state
This part of the Articles defines the general conditions necessary for state responsibility to arise.
General principles
Articles 1, 2 and 3 provide that every internationally wrongful act of a state entails its international
responsibility. The act is wrongful only when conduct (a) is attributable to that state under
international law and (b) constitutes a breach of an international obligation of that state (Article 2).
The Articles do not define when a state will be in breach of international law (see the quote at the
start of the chapter). That has to be determined by applying the primary rules (the law of treaties,
customary international law and other sources of international law) to the facts of each case.
Whether a degree of fault, such as wilfulness or negligence, is necessary is determined in each case
by those primary rules. Actual damage is not necessary unless the particular rule so provides. It is
irrelevant that the conduct is lawful (or, for that matter, unlawful) in the responsible state’s internal
law.
13
The Articles are therefore secondary rules as to when wrongful conduct will be attributable
to a state and the legal consequences. The Articles do not deal with the responsibility of
international organisations or individuals.
14
Attribution of conduct to a state
Organs of the state
For a state to be responsible, the conduct in question must be attributable to the state. The general
rule is that only the conduct of a state’s organs of government or its agents (persons or entities acting
under the direction, instigation or control of those organs) can be attributable to the state.
11. See p. 216 above.
12. Such as the provisions concerning compensation to be paid by Iraq: see p. 220 above.
13. See p. 79 above on Article 27 of the Vienna Convention on the Law of Treaties 1969.
14. On which, see pp. 428-9 below.
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The organ can be legislative, executive or judicial, or of any other nature, including one carrying out
commercial functions. (Although a breach of contract will not entail a breach of international law, a
denial of justice by the courts of the state in enforcing, or failing to enforce, the contact would.)
Organs include those of national, regional or local government, and persons or entities whatever
their level (Article 4(1)), and any person or entity having that status under the internal law of the
state (Article 4(2)). It also includes persons or entities that in fact act as organs, even if they are not
classified as such by internal law. Police forces outside London are not treated in UK law as state
organs,
15
but are regarded as such in international law since their task, the maintenance of law and
order, is a fundamental function of the state.
Purely personal acts cannot be attributed to a state, even if committed by someone who is clearly
an agent of the state, such as an assault by a policewoman on a foreign national she catches in bed
with her husband, even if the assailant has not yet taken off her uniform.
16
The conduct of persons
or entities that are not organs, but are empowered by internal law to exercise ‘elements of
governmental authority’, will be considered as an act of the state if in the particular instance the
person or entity acts in that capacity (Article 5). The rule covers the relatively new phenomenon of
parastatals and privatised state corporations. And even private persons or entities can be included if
they are specifically empowered by internal law to carry out governmental functions, such as
administering government regulations or guarding prisons. The degree to which the state may be
involved in an entity, such as owning or funding it, is not decisive.
17
But in all cases the internal law
must specifically authorise the conduct as involving the exercise of governmental authority. The rule
is thus unlikely to apply to such public corporations as the BBC or the British Council.
18
If an organ of state A is ‘placed at the disposal’ of state B to exercise elements of governmental
authority of state B, its conduct is considered an act of state B (Article 6). The organ must be acting
with the consent, and under the authority and direction and control, of the other state and for its
purposes. The rule would apply to the armed forces of one state
15. Halsbury’s Laws of England, 4th edn, 1999, vol. 36(1), para. 205.
16. See Mallén, RIAA, vol. , p. 516 (1929), at p. 531. The example, unfortunately, is not taken from the
case cited, but shows the delicate line that sometimes has to be drawn.
17. Hyatt International Corporation v. Iran (1985) 9 Iran–US CTR 72 at 88–94.
18. See also pp. 163-4 above on similar issues in state immunity.
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sent to help another state if, and only if, those forces are placed under the exclusive command and
control of the latter state.
Unauthorised or ultra vires conduct
The conduct of state organs, or persons or entities empowered to exercise elements of governmental
authority, are considered acts of the state if those organs, persons or entities act in that capacity, and
even if they exceed their authority or contravene instructions (Article 7). This is a strict rule, states
having sought to evade responsibility by claiming that the conduct was unauthorised. We are here
concerned not with purely personal acts (see previous page), but with conduct done in a government
capacity, even if it is unauthorised or in excess of authority (ultra vires), torture being an all too
typical example. The act must have been purportedly or apparently done while carrying out official
functions (‘cloaked with governmental authority’).
19
In the leading case of Caire, two Mexican
officers, having failed to extort money from a French national, took him to their barracks and
murdered him. Mexico was held liable.
20
A Libyan was convicted of having committed the
Lockerbie murders as a member of the Libyan intelligence services, but even if he acted without
authority Libya would still be responsible for his conduct. In applying this rule, one is concerned
only with the question of attribution, not with whether the conduct itself was a breach of
international law, which is a separate matter. Where the conduct was unlawful under local law and
there are local remedies available, generally those remedies must first be sought by the national of
the injured state.
21
Other conduct attributable to the state
Articles 8 to 11 deal with conduct that is not that of a state organ etc., but is nevertheless attributable
to the state.
The conduct of a person or group of persons is considered an act of a state if in fact that person is
acting on the state’s instructions or under its direction or control (Article 8). They can be private
persons and the conduct does not have to involve governmental activity. Thus a state is responsible
for the acts of private groups that carry out, say, terrorist
19. Petrolane Inc. v. Iran (1991) 27 Iran–US CTR 64 at 92; 95 ILR 146.
20. RIAA, vol. , p. 516 (1929), at p. 531; 5 ILR 146.
21. On exhaustion of local remedies, see p. 441 below.
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attacks on its instructions. Conduct will be attributable to the state if it was an integral part of a
specific operation directed or controlled by it. In the case of the Nicaraguan contras, only those
activities which the United States actually participated in or directed were held attributable to it.
22
When the conduct is under the effective control of the state, acts going beyond what was authorised
will still be attributed to the state.
In exceptional circumstances (for example, during or in the immediate aftermath of revolution,
war or foreign occupation), the conduct of private persons is attributable to the state only if three
conditions are met: (1) they are in fact exercising elements of governmental authority, even if this is
on their own initiative; (2) they do so in the absence or default of the official authorities, which may
be due to the total or partial collapse of state institutions; and (3) the circumstances ‘call for’ the
exercise of those elements of governmental authority, in that there is a need for the functions to be
carried on (Article 9).
23
Article 10 concerns another exceptional case, that of an insurrectional movement.
24
If it becomes
the new government of a state, so that there is real and substantial continuity between the former
movement and the new government, the movement’s previous conduct during the struggle is
attributable to the state,
25
as well as acts of the previous government. (Whereas a government can be
overthrown, the state generally remains in being, and it is the state to which international obligations
attach.)
26
If an insurrectional or other movement succeeds in establishing a new state, either by
decolonisation or secession, the previous conduct of the movement is attributable to the new state. In
any event, some conduct of the previous government in relation to a movement, whether or not the
movement was successful, will also be attributed to the state, such as failure to protect an embassy
from an attack by insurgents.
Even if conduct is not attributable to a state under Articles 4–10, it will be attributable to the
extent that the state acknowledges and adopts the conduct as its own (Article 11). Mere (non-
tangible) support or endorsement is not enough. The conduct will usually be that of private persons.
22. ICJ Reports (1986), p. 14, paras. 75–125, 215–20 and 254–6; 76 ILR 1. Although in Tadic (Case IT-
94-1; 105 ILR 453) the ICTY Appeals Chamber appeared to go further, it was dealing with questions of
individual criminal responsibility.
23. See Yeager v. Iran (1987) 17 Iran–US CTR 92 at 104, para. 43; 82 ILR 178.
24. See for example p. 14 above.
25. See Pinson, RIAA, vol. , p. 327 (1928), at p. 353; 4 ILR 9; Short, 82 ILR 148; Yeager, 82 ILR 178;
Rankin, 82 ILR 204.
26. See p. 390 above.
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When the acknowledgment and adoption is unequivocal and unqualified, attribution may well be
given retrospective effect. In the Tehran Hostages case, the International Court of Justice found that
the seizure of the US embassy and the detention of its staff by militant students was attributable to
Iran. By subsequently endorsing the actions and perpetuating them, organs of the Iranian state had
made those actions into acts of the state.
27
Breach of an international obligation
But, even if conduct is attributable to the state, it must still be established that the conduct was in
breach of the state’s international obligations. That will be the case if the act is ‘not in conformity
with what is required of [the state] by that obligation’, and regardless of the origin or character of the
obligation (Article 12). Articles 13–15 set out ancillary rules in general terms. To determine whether
there has actually been a breach of an international obligation, one has to examine the facts of each
case in the light of the primary rules, whether contained in a treaty or in customary international law.
International law does not draw the distinction found in domestic law between contractual and
tortious responsibility, and therefore, in deciding whether there has been a breach of a treaty, one
may have to interpret its provisions in the light of relevant customary international law. An
international obligation can exist in respect of any matter. The enactment of legislation that is in
conflict with an international obligation will not necessarily amount to a breach: it depends how the
legislation is given effect.
28
Intertemporal rule
29
The rule in Article 13 is critical: ‘An act of a state does not constitute a breach of an international
obligation unless the state is bound by the obligation in question at the time the act occurs.’ This is a
general principle of international law: an act must be judged according to the applicable international
law at the time, not the law when a dispute about it arises, which could be many years later.
30
The
corollary is that, even if the obligation
27. US Diplomatic and Consular Staff in Tehran, ICJ Reports (1980), p. 3, para. 74; 61 ILR 502.
28. See Commentary on Article 12, para. (12).
29. As to territorial disputes and the evolutionary interpretation of treaties, see pp. 35 and 93 above,
respectively.
30. Island of Palmas, 4 AD 3.