[James Crawford, Articles on Responsibility of States for Internationally Wrongful Acts]

1. Historical background and development of codification

a. In 1948, the UN GA created the ILC, which, from 1956-2001, developed the principles of State
responsibility for injury to aliens and their property.
b. Ultimately, UN GA Resolutions 62/61 and 65/19 merely commended the Articles, as some States
preferred to maintain its status as an ILC text approved ad referendum (subject to agreement by
others). Regardless, the text has been widely approved and applied in practice, including use by the ICJ.
2. Basic Principles
a. State Responsibility as Secondary Rules of intl law
i. Rather than drafting an over-ambitious code of substantive provisions containing obligations for
States, the ILC drafted a general framework of rules of State responsibility.
ii. Thus, the Articles provide an overarching, general framework which sets the consequences of a
breach of an applicable primary obligation, rather than tell States what obligations they have.
b. Foundations of State Responsibility
i. Art. 1: Every intl wrongful act of a State entails the intl responsibility of that State.
1. Notably, the provision does not limit this responsibility to other States, and makes no
distinction between treaty and non-treaty obligations.
2. Thus, there is no difference between responsibility ex contractu and ex delicto, nor
between bilateral or multilateral obligations.
ii. Art. 2 provides the elements for an intl wrongful act: (a) Conduct attributable to the State (b)
which is inconsistent with its intl obligations.
1. Notably, no requirement of fault or wrongful intent. This is because different primary
rules may impose different standards of fault, from due diligence to strict liability. The
Articles dont want to impose its own general standard of diligence.
iii. Arts. 4-11 provide for the Attribution of conduct to a State, which considers both subjective (an
organ controlled by a State) and functional perspectives (persons or groups acting in the
absence or default of official authorities; acts of insurrectional movements).
1. It also considers ratification (Art. 11) as an analogue of Attribution.
iv. The Time Aspect of breach is also considered, as continuing, composite, and complex wrongful
acts have been distinguished from each other.
v. Arts. 20-25 provide defences, which are the circumstances that preclude the wrongfulness of an
act.
3. Consequences of State Responsibility
a. Cessation, non-repetition, and reparation. Stop, dont repeat, and repair.
i. Intl wrongful acts do not affect the continued duty of a State to perform an obligation it
breached (Art. 29). There is a continued duty of performance.
ii. If the breach is continuing, the State is obliged to cease conduct, and if circumstances so
require, assure and give guarantees of non-repetition (Art. 30)
iii. Entails the State to make full reparation for the injury caused (Art. 31)
b. The ILC believes that cessation, non-repetition, and reparation have equal status and value.
i. But the assurances as flexible, given if circumstances so require.
4. Nature and Forms of Reparation
a. Restitution, compensation, and satisfaction. Restore, indemnify, and apologize.
i. Restitution, or re-establishing the situation which existed before the wrongful act was
committed, is considered the primary form of reparation (Art. 35), except when:
1. Materially impossible, or involving a burden out of all proportion to the benefit derived
ii. When restitution is unavailable, compensation is payable for financially assessable losses to
compensate damages caused (Art. 36)
 iii. When injury cannot be made good by restitution or compensation, the State is required to give
satisfaction for the breach. Satisfaction is an acknowledgment of breach, an expression of
regret, a formal apology, or similar. (Art. 37)
5. Serious Breaches of Obligations under Peremptory Norms of General Intl Law
a. ILC debated including a separate category of wrongful acts so serious as to be defined intl crimes,
offending the intl community as a whole, and not just the injured state [a la erga omnes].
b. This was included in Art. 19 of the 1996 draft (but removed in the final 2001 draft), defining an intl
crime as:
i. An intl wrongful act which results from the breach by a State of an intl obligation so essential
for the protection of fundamental interests of the intl community that its breach is recognized
as a crime by that community as a whole.
ii. The idea of holding a State responsible for a crime was opposed by many States, since the
Articles lacked basic guarantees of due process correlative to criminal responsibility.
c. Thus, intl crimes never became a thing, instead being expressed in Arts. 40-41, or the consequences of a
serious breach of a peremptory norm:
i. A breach is serious if it involves a gross or systematic failure by the State to fulfil the obligation
ii. Consequences are:
1. States shall co-operate to bring to an end the breach through lawful means.
2. No state shall recognize such breach as lawful, nor render aid or assistance in
maintaining it.
3. These Articles are without prejudice to any other consequences of intl law
6. The Invocation of Responsibility
a. Who is entitled to invoke State responsibility?
i. Injured States (Art. 42):
1. either by the State individually, if specially affected
2. or by a group of States including the injured State, or even the intl community, if breach
is of a character as to radically change the position of all the other States to which the
obligation is owed with respect to the further performance of the obligation.
a. These obligations are all-or-nothing, which means a States performance is
conditioned upon performance by the other (i.e. some disarmament
obligations)
b. Human rights obligations are not all-or-nothing, being incremental, and hence
the failure of one to comply does not relieve other parties from their duty.
ii. Non-injured States (Art. 48):
1. Requires that the obligation breached is owed to a group of States including that State,
and is established for the protection of a collective interest of the group, or;
2. The obligation breached is owed to the intl community as a whole.
a. Restricts the invocation of erga omnes breaches to States, not other entities like
the UN, EU or ICRC.
b. In general, injured States have the right to choose the form of reparation. (Art. 43)
i. This is restricted by Art. 44, requiring compliance with the rules concerning the nationality of
claims and the exhaustion of local remedies.
ii. This right can be expressly or impliedly waived (Art. 45), but such must be clear and unequivocal
or, as for acquiescence, there is no clear cut time for when such has considered to have
occurred, as long as a reasonable amount of time has passed where the State could have
invoked but did not.
c. When there is a plurality of States re: the same breach (Art. 46, 47):
i. Each injured state may invoke the responsibility of each breaching State
 ii. Each breaching State is only responsible for its conduct, and cannot indemnify injured States
more than their injury suffered.
7. Countermeasures
a. Generally means to ensure the cessation of the breach and reparation, and are thus essentially
temporary, until such obligations are complied with.
b. Must be commensurate to the injury suffered.
c. Limited by fundamental substantive obligations (Art. 50)
i. Prohibition on the threat or use of force
ii. Fundamental human rights obligations, etc.
d. Countermeasures must be suspended when:
i. The breach has ceased
ii. The parties are before a competent court with the power to make binding decisions.
1. But this rule doesnt apply when the breaching State fails to implement the dispute
settlement in good faith.
e. Procedural conditions:
i. Obligation to call the breaching State to comply with cessation and reparation.
ii. The breaching State must be notified of any decision to take countermeasures and given a
chance to negotiate.
1. Notwithstanding this, the injured State may take urgent countermeasures to preserve
its rights.
f. Collective Countermeasures
i. Saving clause reserves the right to leave the final resolution to later, pending the further
development of intl law.