State Responsibility: ARSIWA, Attribution and Reparation

When a state breaches an international obligation, it incurs responsibility and must make good the harm. The rules on when this happens and what follows are set out in the ILC Articles on Responsibility of States for Internationally Wrongful Acts, 2001 (ARSIWA), of which the General Assembly took note and which courts widely apply as customary law. This note covers the elements, attribution, circumstances precluding wrongfulness, reparation and countermeasures.

1. The Basic Rules

• Article 1. Every internationally wrongful act of a state entails its international responsibility.
• Article 2. 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.
• Article 3. Whether an act is wrongful is governed by international law, unaffected by its lawfulness under internal law.
• Fault and damage. The Articles require neither fault nor damage as general conditions; whether intent or harm is needed depends on the primary rule breached; the objective approach was applied in the Caire claim (1929), while Corfu Channel (1949) inferred Albania's knowledge of the mines from the circumstances.
• Primary and secondary rules. The Articles state secondary rules on the consequences of breach, not the primary obligations themselves.

2. Attribution

Figure 1: Articles 4 to 11

• Caire claim (France v Mexico), 1929. Mexican officers who killed a French national after he refused to pay them engaged Mexico's responsibility, since they acted under cover of their official status even though beyond their authority.
• Nicaragua (Nicaragua v USA), 1986. The United States financed, organised and supported the contras but was not responsible for their violations of humanitarian law without proof of effective control over the specific operations.
• Tadić (ICTY Appeals Chamber), 1999. Applied an overall control test to decide whether the conflict in Bosnia was international.
• Bosnian Genocide (Bosnia v Serbia), 2007. The ICJ reaffirmed the effective control test for attribution; the Srebrenica massacre was not attributable to Serbia, but Serbia breached its duty to prevent genocide and to cooperate in punishing it.
• US Diplomatic and Consular Staff in Tehran, 1980. Militants who seized the embassy were not initially state agents, but once Iran's leaders approved and maintained the occupation, their conduct became acts of Iran (Article 11)

3. Breach and Complicity

• Timing. A state is responsible only for breach of an obligation in force at the time (Article 13); a continuing wrongful act, such as unlawful detention, extends over the whole period it continues (Article 14)
• Aid or assistance, Article 16. A state that knowingly aids or assists another in committing a wrongful act is responsible if the act would be wrongful if committed by itself.
• Direction and coercion, Articles 17 and 18. A state that directs and controls, or coerces, another in committing a wrongful act is also responsible.

4. Circumstances Precluding Wrongfulness

Figure 2: Articles 20 to 26

• Rainbow Warrior (New Zealand v France), 1990. After French agents sank the Greenpeace ship Rainbow Warrior in Auckland in 1985, France agreed to keep two agents on the island of Hao; removing them without New Zealand's consent was not justified by force majeure or distress, except arguably for one agent's medical emergency; the tribunal's declaration of breach was itself a form of satisfaction.
• Necessity. In Gabčíkovo-Nagymaros (1997), Hungary's ecological concerns did not show a grave and imminent peril, and necessity was in any case only an excuse, not a ground of termination; in the Wall opinion (2004), Israel could not rely on necessity.
• Consequences, Article 27. When the circumstance ends, the obligation revives, and compensation may still be due for material loss.

5. Reparation

In Factory at Chorzów (Germany v Poland), PCIJ, 1928, the Court laid down that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Article 31 of ARSIWA requires full reparation for the injury caused.

Figure 3: Forms of reparation

• Order of remedies. Restitution comes first if not materially impossible or out of all proportion; compensation covers damage not made good by restitution; satisfaction covers injury that cannot be made good by either, such as moral injury to the state.
• Corfu Channel, compensation, 1949. Albania was ordered to pay the United Kingdom £843,947 for the loss of ships and lives.
• Armed Activities (DRC v Uganda), reparations, 9 February 2022. The ICJ awarded the DRC US$325 million for loss of life, damage to property and natural resources, payable in five annual instalments of US$65 million.
• I'm Alone, 1935. The commissioners recommended that the United States apologise and pay US$25,000 to Canada as satisfaction for the sinking of the ship.

6. Invocation and Countermeasures

• Invocation. The injured state may invoke responsibility (Article 42); any state may invoke breaches of obligations owed to the international community or to a group of states (Article 48)
• Countermeasures, Articles 49 to 54. An injured state may suspend performance of its own obligations to induce compliance; countermeasures must be proportionate, preceded by a demand and an offer to negotiate, and reversible; they may not involve force, violate fundamental human rights, humanitarian prohibitions on reprisals, peremptory norms or diplomatic inviolability (Article 50)
• Naulilaa (Portugal v Germany), 1928. A reprisal is lawful only in response to a prior breach, after an unsatisfied demand, and if not disproportionate.

7. Frequently Asked Questions

What is the difference between effective control and overall control?

Effective control, the ICJ's test for attributing acts of private groups to a state, requires control over the specific operations in which the violations occurred. Overall control, used by the ICTY in Tadić, requires only general control over the group, and the ICJ in Bosnian Genocide (2007) limited it to classifying conflicts.

Is a state responsible for acts of its officials who exceed their powers?

Yes, if they act in their official capacity. Under Article 7, as in the Caire claim (1929), conduct of an organ or official is attributable even if it exceeds authority or contravenes instructions.

What did the Chorzów Factory case lay down?

That breach of an engagement involves an obligation to make reparation, and that reparation must, as far as possible, wipe out all the consequences of the illegal act and restore the situation that would probably have existed if it had not been committed. This is the basis of the full reparation rule in Article 31.

Can a state take countermeasures involving force?

No. Under Article 50, countermeasures may not affect the obligation to refrain from the threat or use of force, obligations protecting fundamental human rights, humanitarian prohibitions on reprisals, other peremptory norms, or the inviolability of diplomatic agents and premises.

8. Related Topics

• Topic 10: Jus Cogens and Obligations Erga Omnes. Serious breaches and invocation by all states.
• Topic 39: Diplomatic Protection. Claims for injury to nationals.
• Topic 50: Use of Force and Self-Defence. Self-defence and countermeasures.