Class 3
Responsibility under International Law
Professor Paola Gaeta
Responsibility under int’l law:
o State responsibility: ‘primitive’ form responsibility since it is collective responsibility:
the group to which the individual who has violated int’l law belongs will suffer the
consequence of the wrongful behavior of such individual
o Development of the int’l responsibility of the individuals as such: parallel to the
responsibility of the state and in the area of criminal law (a tendency to emphasize in
some cases the criminal responsibility of the individual)
o Responsibility under int’l law of Int’l Organizations: on the basis of the same
principles/rules as state responsibility, but less developed
o Problems for the rules on responsibility of other int’ls actors/subjects (non-state armed
groups)
Source of law on State Responsibility:
o Customary international law “codified” in the 2001 Articles on Responsibility of States
for Internationally Wrongful Acts of the International Law Commission (ILC)
Endorsed by UN General Assembly with a Res.
Basic Principles:
o Article 1 ILC Articles: Every internationally wrongful act of a State entails
international responsibility of that State
o Article 3: The characterization of an act of a State as internationally wrongful is
governed by international law. Such characterization is not affected by the
characterization of the same act as lawful by internal law (state responsibility is
independent from domestic law)
Precondition of state responsibility: the commission of a wrongful act that is attributable
to a State
o Injury or damage is not a necessary requirement for S.R.
o S.R. can be avoided if the State is able to raise a circumstance precluding
wrongfulness
Content of State Responsibility
o in principle irrelevance of the content of the primary rule violated (a minor violation
entails the same consequences of a serious violation of int’l law)
o The current draft contains however the distinction between:
i) ‘bilateralized’ rules and ii) rules owed to the int’l community as a whole or towards a
group of states as a whole (erga omnes rules/jus cogens rules) relevant in the matter
of the subjects entitled to claim the international responsibility of a state
o State responsibility is not retributive: mainly restorative (cessation of the wrongful act,
if continuing/reparation in its different forms (restitution in
integrum/compensation)/guarantees of non-repetition)
o ‘Enforcement’ measures only in the case a state fails to comply with its obligations
under state responsibility purpose to comply with such obligations: counter-
measures (in the past also called reprisals)/retortions (unfriendly acts) ‘sanctions’
taken by int’l organizations may sometimes be considered an enforcement measure for
state responsibility
Consequences stemming from the commission of a wrongful act
The responsible state has:
(1) Duty to perform the obligation breached
(2) Duty to cease and not repeat wrongful conduct
(3) Obligation to provide for full reparation:
o Apology/satisfaction
o Restitution of property unlawfully taken/Restitution in kind
o Monetary compensation (most common): May include lost profits and interests
The injured State has
(1) the right to take countermeasures against the responsible State to enforce the responsibility
of the latter.
Countermeasures are illegal acts which are justified as a response to an earlier violation
by another State (they are therefore another circumstance precluding wrongfulness: see
above).
Countermeasures must be:
o preceded by a previous recourse to peaceful means of settlement (if available), but
possible ‘urgent’ measures of protection
o must be proportionate
o cannot consist in the violation of certain rules (e.g., violations of jus cogens, use of
force ect)
o cannot infringe the rights of ‘third’ states
Who can invoke the responsibility of a State:
- The ‘injured’ state that has also the right to take countermeasures the state that is
particularly affected by the violation
- In case of obligations owed to the international community as a whole also non-
injured states (including for the benefits of the individuals who have suffered harm, if
there is no ‘injured state’ but unclear whether they can resort to countermeasures
the ILC Articles refer to ‘lawful measures’ (see however recent practice of ‘sanctions’
in the context of rhe Syrian crisis, or Iran ect)
