Anthony Aust. Handbook of International Law
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were to cease (for example, by termination of a treaty), any responsibility that had already accrued
would be unaffected. The principle applies equally to a new jus cogens (peremptory norm).
31
Extension in time of breach of an international obligation
Identifying when an internationally wrongful act begins, and how long it continues, is a problem that
often arises. Article 14(1) provides that the breach of an international obligation by an act that itself
does not have a ‘continuing character’ occurs at the moment the act is performed, even if its effects
continue. When a wrongful act has been completed but its effects continue (for example, pain from
torture), this prolongation is relevant to the amount of compensation. A breach by an act that does
have a continuing character extends over the entire period the wrongful act continues, such as
unlawful occupation of territory or an embassy (Article 14(2)). The same rule applies to a breach of
an obligation to prevent a given act occurring. The concept of a wrongful act having a continuing
character is particularly important if a court did not have jurisdiction in respect of the act when it
began, but acquires jurisdiction later.
32
When the wrongful act actually occurs depends on the nature
of the international obligation that is alleged to have been breached and on the facts. Conduct of a
preparatory character will not normally be enough.
33
Breach consisting of a composite act
The breach of an international obligation through a series of acts ‘defined in the aggregate as
wrongful’ occurs when conduct occurs which, taken with other acts, is sufficient to constitute the
wrongful act. The breach then extends over the entire period the acts are repeated and are still
wrongful (Article 15). Genocide or systematic acts of discrimination prohibited by a trade agreement
would fall into this category.
Articles 16–19 deal with the responsibility of a state that aids, assists, directs, controls or coerces
another state to commit an internationally wrongful act.
31. See p. 11 above.
32. Such as when property is seized before the Court had competence for the matter: Loizidou v. Turkey
(Merits), (1997) EHRR 513, paras. 41–7 and 63–4; 108 ILR 443.
33. Gabcíkovo-Nagymaros Project, ICJ Reports (1997), p. 7, para. 79; ILM (1998) 162; 116 ILR 1.
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Circumstances precluding wrongfulness
Although they do not affect the international obligation, certain circumstances can justify an act in
breach of that obligation, thus precluding the wrongfulness of the act. The circumstances are
therefore in the nature of a defence, the onus of establishing it lying with the state seeking to avoid
responsibility.
The first obvious case is when consent is given by a state to the commission of an act by another
state that would otherwise be wrongful (Article 20). Consent to foreign military aircraft entering
sovereign airspace is a simple and obvious example.
34
The wrongfulness of an act is precluded if it constitutes a ‘lawful’ measure of self-defence done in
conformity with the UN Charter (Article 21). The act must therefore be within the limits placed on
acts of self-defence. This is judged according to the law on the use of force (jus ad bellum).
35
But,
even when the use of force is lawful, responsibility will remain for any breaches of the law of armed
conflict (jus in bello)
36
or of non-derogable human rights.
37
Nor are countermeasures wrongful,
provided they are lawful (Article 22) (see below).
There are some exceptional defences. An act is not wrongful if it was done because of force
majeure, although this is difficult to establish. Force majeure is defined as ‘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 [international] obligation’ (Article 23).
38
Force
majeure will not be a defence if the situation is due to the conduct of the state or if it has
unequivocally assumed the risk of the situation arising. Severe weather or a military attack may
make it materially impossible to avoid a breach of the obligation. It is not enough that it has become
more difficult to perform the obligation.
39
Similarly, an act is not wrongful if its author has no other reasonable way, in a situation of
distress, of saving his life or that of others entrusted to his care. The defence does not apply if the
situation of distress is due to the conduct of the state or if the act is likely to create a comparable or
greater peril (Article 24). Here we are concerned with the immediate
34. See p. 346 above.
35. As to self-defence generally, see pp. 226-9 above.
36. See p. 251 above.
37. See p. 245 above.
38. See the Rainbow Warrior, 82 ILR 499 at 553.
39. The conditions for termination of a treaty on the ground of supervening impossibility are even stricter
(see p. 104 above).
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need to save human life, usually when a ship or aircraft is in distress due to weather or mechanical
failure.
40
More general cases of emergencies come within the defence of necessity. Since the plea arises
only when there is an irreconcilable conflict between an essential interest of a state and its
international obligations, it can be open to abuse, and so Article 25 circumscribes it severely.
Necessity may not be invoked to excuse an act in breach of an international obligation unless the act
(a) is the ‘only way’ to safeguard ‘an essential interest’ against a ‘grave and imminent peril’ and (b)
does not seriously impair an essential interest of a state owed the obligation or the international
community as a whole.
41
Moreover, it cannot be raised if the international obligation excludes the
possibility of invoking necessity (as in the law of armed conflict) or the state contributed to the
situation of necessity. The defence has often been invoked, but will be successful only in exceptional
circumstances, and usually not when financial or economic circumstances are cited.
42
Nothing in Articles 20–25 permits a state to breach a peremptory norm (jus cogens) of
international law, such as the prohibitions on genocide, slavery, aggression or crimes against
humanity (Article 26).
43
Even when wrongfulness is precluded by one of the defences, once the
circumstances precluding wrongfulness no longer exist, the state must comply with the international
obligation, unless the obligation has by then been terminated (Article 27(a)). And, even where the
wrongfulness of an act is precluded, compensation may be due if ‘material loss’ has been suffered,
although such loss would not be determined in accordance with the latter Articles but by agreement
(Article 27(b)).
44
Content of the international responsibility of a state
When an internationally wrongful act has been committed, a new legal relationship arises between
the states involved, in particular the obligation to make reparation. This constitutes the substance of
the responsibility of
40. See also Article 18(2) of UNCLOS.
41. See M/V Saiga (No. 2), 120 ILR 143 at 191–2.
42. See Gabcíkovo-Nagymaros Project, ICJ Reports (1997), p. 7, paras. 51–2; ILM (1998) 162; 116 ILR 1.
And compare Article 62 of the Vienna Convention on the Law of Treaties 1969 (pp. 104–5 above).
43. See pp. 268-72 above, and Articles 40 and 41 below.
44. See the ILC Commentary on Article 27, paras. (4)–(6).
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the state.
45
Article 28 repeats the principle in Article 1 that an internationally wrongful act of a state
entails its international responsibility, and links it with the corollary that such responsibility involves
legal consequences, which are then set out in Articles 29–33. The legal consequences of an
internationally wrongful act do not affect any continuing duty to comply with the obligation that has
been breached; the breach does not, as such, terminate the obligation (Article 29).
Cessation and non-repetition
The state responsible for the internationally wrongful act is under an obligation (a) to cease the act,
if it is continuing,
46
and (b) to offer appropriate assurances and guarantees of non-repetition, if
circumstances so require (Article 30). Since wrongful acts of a continuing character are quite
common, cessation – and thus a resumption of compliance with the obligation – is often the main
demand by the injured state, reparation being a secondary consideration. In some cases, cessation
may shade into restitution (see below), such as the return of stolen objects. An assurance or
guarantee of non-repetition, with perhaps a promise to repeal objectionable legislation, may overlap
with satisfaction (see below).
Reparation
The principle of reparation in Article 31 is central. The responsible state is under an obligation to
‘make full reparation for the injury caused by the internationally wrongful act’. ‘Injury’ includes
‘any damage, material or moral’, caused by the act.
47
It is not necessary for there to be material
damage. ‘Moral’ damage includes pain and suffering, loss of loved ones and affronts to honour,
dignity or prestige.
48
The obligation to ‘make full reparation’ is used in the most general sense of
making amends by wiping out the consequences of the wrongful act,
49
and consists of restitution,
compensation or satisfaction. The obligation arises automatically on the commission of the wrongful
act. It does not require a demand from the injured state, although the form of reparation will usually
be dependent on
45. See also Article 36(2)(c) and (d) of the Statute of the ICJ.
46. See p. 383 above on the WTO dispute settlement mechanism.
47. See Crawford, The International Law Commission’s Articles on State Responsibility, Cambridge, 2002,
p. 31.
48. Rainbow Warrior, 74 ILR 499.
49. See the leading case of the Factory at Chorzów, 4 AD 258.
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that state’s response. There must of course be a causal link between the act and the injury, and
questions of remoteness of damage may arise. Failure by the injured state to take reasonable steps to
mitigate the damage will not affect the right to reparation, although it may be taken into account in
calculating any compensation.
Article 32 echoes Article 3: the responsible state cannot rely on provisions of its internal law to
justify a failure to comply with its obligations of cessation and reparation. The obligations of the
responsible state may be owed to more than one state, or to the international community as a whole;
and any right arising from the international responsibility of a state may accrue directly to a person
or entity other than a state (Article 33). For example, a person whose human rights have been
violated may have a procedure by which he can obtain reparation without his state of nationality
being involved.
50
Forms of reparation
Articles 34–39 elaborate the general principle in Article 31 of full reparation by describing its three
forms, the relationship between them, interest and the effect of any contribution to the injury made
by the injured state. The three forms of reparation (restitution, compensation and satisfaction) are not
mutually exclusive; an injury may be such that more than one form, even all three, will be needed
(Article 34). The invasion and occupation of Kuwait by Iraq required all three: the return of people
and property, compensation for bodily injury and property loss or damage, and an acknowledgement
by Iraq of its wrongful acts.
51
Each form of reparation must be proportionate to the injury.
52
Reparation for the illegal seizure of property may well require both its restitution and compensation
for loss of use and material damage, although in most cases an injured state can choose to receive
compensation in place of restitution (Article 43(2)(b)).
Restitution
The responsible state is under an obligation to re-establish the situation that existed before the
wrongful act, in so far as this is ‘not materially
50. See pp. 246 et seq above.
51. See UNSC Res. 687 (1991), the so-called ceasefire resolution or ‘the Mother of all Resolutions’.
52. See Shaw, pp. 714–20 for a useful summary of some of the case law.
