State Responsibility under International law

Key Takeaways

• State responsibility under international law arises when conduct attributable to a State breaches an international obligation binding upon that State.
• The modern framework is largely reflected in the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, 2001 (ARSIWA).
• Two essential elements are required for an internationally wrongful act: attribution of conduct to the State and breach of an international obligation.
• A State may be responsible not only for acts of its government but also, in certain circumstances, for acts of public authorities, persons acting under its instructions or control, insurrectional movements and conduct later adopted by the State.
• Wrongfulness may be precluded in limited circumstances such as valid consent, lawful self-defence, countermeasures, force majeure, distress and necessity.
• A responsible State may be required to stop the wrongful act, prevent repetition and make full reparation, including restitution, compensation or satisfaction.
• State responsibility is different from international criminal responsibility. The former concerns the international legal responsibility of a State, whereas criminal responsibility generally concerns individuals.

What Is State Responsibility under International Law?

State responsibility under international law refers to the legal consequences that arise when a State commits an internationally wrongful act.

The basic principle is expressed in Article 1 of the Articles on Responsibility of States for Internationally Wrongful Acts, 2001, which provides that every internationally wrongful act of a State entails the international responsibility of that State.

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State responsibility therefore creates a legal relationship between the responsible State and the State, States or international community whose rights or interests have been affected.

The rules concerning State responsibility do not normally determine what substantive obligations States have. Instead, they determine what happens when an existing international obligation has been violated.

For example, the prohibition against the unlawful use of force is a substantive international obligation. The law of State responsibility addresses questions such as whether the conduct is attributable to a particular State and what legal consequences follow from the breach.

The International Law Commission describes these rules as secondary rules of international law, because they regulate the consequences of violations of primary international obligations.

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Development of the Law of State Responsibility

The concept of State responsibility has developed through customary international law and other recognised sources of international law, judicial decisions, State practice and the work of the International Law Commission.

Efforts to codify the subject began before the establishment of the United Nations. State responsibility was considered during the League of Nations period and was one of the subjects addressed at the unsuccessful Hague Codification Conference of 1930.

After the International Law Commission was established in 1948, State responsibility became one of its major codification projects.

The Commission formally worked on the topic from 1954 to 2001. The final Articles on Responsibility of States for Internationally Wrongful Acts were adopted by the Commission in 2001.

The United Nations General Assembly took note of the Articles through Resolution 56/83 of 12 December 2001 and commended them to governments. They have not, however, been transformed into a comprehensive international convention.

Even though ARSIWA is not itself a treaty, many of its provisions are widely treated as reflecting customary international law and have frequently been relied upon by international courts and tribunals.

What Are the Elements of State Responsibility?

Article 2 of ARSIWA identifies two basic conditions for an internationally wrongful act of a State:

1. The conduct must be attributable to the State under international law.
2. The conduct must constitute a breach of an international obligation of that State.

Both conditions must ordinarily be satisfied.

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Attribution of Conduct

Attribution determines whether particular conduct can legally be regarded as an act of the State.

International responsibility cannot arise merely because a harmful act occurred within the territory of a State. There must be a legal basis for connecting that conduct to the State.

Breach of an International Obligation

There must also be a violation of an international obligation binding upon the State at the relevant time.

The obligation may arise from:

• an international treaty;
• customary international law;
• a binding decision of an international body;
• a general principle of international law; or
• another recognised source of international obligation.

The source of the obligation does not generally determine whether State responsibility can arise.

Does Domestic Law Decide Whether an Act Is Internationally Wrongful?

No. The characterisation of conduct as internationally wrongful is governed by international law.

Under Article 3 of ARSIWA, an act may constitute an internationally wrongful act even if the same conduct is lawful under the domestic law of the State concerned.

Therefore, a State cannot ordinarily avoid international responsibility merely by arguing that its officials acted according to national legislation.

This reflects the broader distinction between international law and municipal law. A rule may be valid under domestic law while still placing the State in breach of an international obligation.

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Similarly, the responsible State cannot rely upon its domestic law as justification for failing to comply with the consequences of international responsibility.

When Is Conduct Attributable to a State?

ARSIWA contains several rules dealing with attribution.

Conduct of State Organs

Under Article 4, the conduct of any organ of the State is considered an act of that State under international law.

This includes organs exercising:

• legislative functions;
• executive functions;
• judicial functions; or
• any other governmental functions.

It does not generally matter whether the organ belongs to the central government or a territorial unit of the State.

A wrongful act committed by a police authority, court, ministry, armed force or other State organ may therefore engage the international responsibility of the State.

Entities Exercising Governmental Authority

Article 5 deals with persons or entities that are not formally State organs but are authorised by domestic law to exercise elements of governmental authority.

Their conduct may be attributable to the State when they act in that governmental capacity.

This principle becomes important where States delegate public powers to corporations, agencies or other bodies outside the traditional governmental structure.

Organs Placed at the Disposal of Another State

Article 6 covers the conduct of an organ of one State that has been placed at the disposal of another State.

Its conduct may be regarded as an act of the receiving State where it exercises elements of that State’s governmental authority.

Acts beyond Authority or Contrary to Instructions

A State organ may sometimes act beyond its authority or contrary to official instructions.

Under Article 7, such conduct may nevertheless be attributed to the State where the organ or entity acted in its official capacity.

The State therefore cannot automatically escape responsibility by claiming that the official exceeded authorised powers.

Can Acts of Private Persons Be Attributed to a State?

Private conduct is not automatically attributable to a State. However, Article 8 recognises attribution where a person or group acts:

• on the instructions of the State;
• under the direction of the State; or
• under the control of the State.

The degree of control required has been examined extensively by international courts.

Nicaragua v United States

In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), the International Court of Justice considered whether acts committed by the Contra forces could be attributed to the United States.

The Court found that extensive support, financing and assistance were not by themselves sufficient to attribute every act of the Contras to the United States.

For responsibility for particular violations, the Court stated that it was necessary to establish effective control over the operations in which those violations occurred.

This became known as the effective control test.

Bosnia and Herzegovina v Serbia and Montenegro

The ICJ applied the effective control approach again in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case.

The Court explained that where persons who are not State organs act under State instructions, direction or control, attribution depends upon whether the required level of control existed in relation to the relevant operation.

The Court held that it had not been established that Serbia exercised effective control over the operations in which the Srebrenica genocide was committed.

What Happens When Private Conduct Is Adopted by a State?

Article 11 recognises another important basis of attribution.

Conduct that was initially private may become attributable to the State where the State subsequently acknowledges and adopts that conduct as its own.

The United States Diplomatic and Consular Staff in Tehran case is a significant illustration.

The initial seizure of the American Embassy by militants was not immediately treated as conduct attributable to Iran merely because the events took place in Iranian territory.

However, Iran separately breached its international obligations by failing to take appropriate steps to protect the embassy and diplomatic personnel. The subsequent approval and continuation of the occupation by Iranian authorities also became relevant to State responsibility.

The case therefore illustrates both responsibility for omission and attribution through subsequent adoption of private conduct.

What Constitutes a Breach of an International Obligation?

Under Article 12 of ARSIWA, a breach occurs when the conduct of a State is not in conformity with what is required by an international obligation.

The obligation must also have been binding on the State at the relevant time.

Article 13 reflects the principle that a State cannot generally be held responsible for breaching an obligation that was not yet binding upon it.

Continuing Breaches

Some violations occur at one specific moment, while others continue over a period of time.

A continuing breach remains wrongful for the entire period during which the conduct continues and remains inconsistent with the international obligation.

For example, an unlawful detention or occupation may involve a continuing breach depending upon the applicable rule.

Composite Acts

Article 15 deals with breaches consisting of a series of actions or omissions that collectively amount to wrongful conduct.

This is relevant where no single act is sufficient by itself, but the combination of several acts constitutes the international wrong.

Can a State Be Responsible for Helping Another State Commit a Wrongful Act?

Yes. International responsibility may arise in connection with the conduct of another State.

Aid or Assistance

Article 16 concerns a State that aids or assists another State in committing an internationally wrongful act.

Responsibility may arise where the assisting State:

• knows the circumstances of the wrongful act; and
• provides assistance in circumstances covered by Article 16.

Direction and Control

Article 17 deals with situations where one State directs and controls another State in the commission of an internationally wrongful act.

Coercion

Article 18 addresses coercion.

A State that coerces another State into committing conduct that would otherwise constitute an internationally wrongful act may itself incur international responsibility where the conditions under the Article are satisfied.

What Are the Circumstances Precluding Wrongfulness?

International law recognises certain limited circumstances in which conduct that would otherwise breach an obligation may not be treated as wrongful.

These circumstances do not generally erase the underlying international obligation. They operate under specific and restrictive conditions.

Consent

Under Article 20, valid consent by one State to the conduct of another may preclude wrongfulness to the extent that the conduct remains within the limits of that consent.

The consent must be legally valid and given by competent authorities.

Self-Defence

Article 21 provides that the wrongfulness of conduct may be precluded where it constitutes a lawful measure of self-defence under international law taken in conformity with the United Nations Charter.

Self-defence is therefore not a general justification for retaliation. Its legality depends upon the requirements of international law, including the rules governing the use of force.

Countermeasures

A State affected by an internationally wrongful act may, subject to strict conditions, take lawful countermeasures against the responsible State.

Countermeasures are intended to induce compliance with international obligations and are subject to important limitations.

Force Majeure

Article 23 recognises force majeure where an irresistible force or unforeseen event beyond the State’s control makes performance of the obligation materially impossible.

Force majeure is interpreted narrowly. Mere difficulty, inconvenience or increased expense is generally insufficient.

Distress

Under Article 24, distress may preclude wrongfulness where the person performing the State act has no other reasonable way of saving their own life or the lives of persons entrusted to their care.

Necessity

Article 25 recognises necessity only in exceptional circumstances.

Generally, necessity may be relied upon where the conduct is the only way for the State to safeguard an essential interest against a grave and imminent peril and does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.

The defence is subject to several restrictions and cannot be invoked freely whenever compliance becomes inconvenient.

Can These Defences Justify Violations of Peremptory Norms?

No.

Article 26 makes clear that the circumstances precluding wrongfulness do not permit conduct that violates an obligation arising under a peremptory norm of general international law, commonly referred to as jus cogens.

Peremptory norms occupy a special position in international law because no derogation from them is permitted.

Examples generally associated with peremptory norms include prohibitions concerning genocide, slavery, torture and aggression, although the precise identification and scope of particular jus cogens norms must be determined under international law.

What Are the Legal Consequences of State Responsibility?

Once State responsibility is established, several legal consequences may follow.

Articles 28 to 39 of ARSIWA deal with these consequences.

Continued Duty of Performance

Responsibility does not automatically terminate the original obligation.

Under Article 29, the responsible State generally remains under a duty to perform the obligation that has been breached.

Cessation

If the wrongful act is continuing, the responsible State is required to cease that conduct.

For example, where an unlawful international act continues over time, cessation may be the immediate legal remedy.

Assurances and Guarantees of Non-Repetition

Article 30 also recognises that appropriate assurances and guarantees of non-repetition may be required where circumstances justify them.

These measures are intended to reduce the risk of the same violation occurring again.

What Is the Principle of Full Reparation?

Article 31 provides that the responsible State must make full reparation for the injury caused by the internationally wrongful act.

Injury includes both material and moral damage.

The classic principle was stated in the Factory at Chorzów case, where the Permanent Court of International Justice explained that reparation should, as far as possible, remove the consequences of the wrongful act and restore the situation that would probably have existed had the violation not occurred.

Reparation may take one or more forms.

Restitution

Restitution seeks to restore the situation that existed before the internationally wrongful act.

It may involve:

• returning unlawfully seized property;
• releasing unlawfully detained persons; or
• restoring a previous legal or factual position.

Restitution may not be required where it is materially impossible or would impose a burden wholly disproportionate to the benefit derived from it.

Compensation

Where restitution does not fully repair the damage, compensation may be required for financially assessable loss.

Compensation may cover damage to persons, property, economic interests and other measurable losses where causation is established.

In Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), the ICJ awarded compensation for damage to persons, property and natural resources resulting from breaches of international law.

Satisfaction

Satisfaction may be appropriate where injury cannot be fully repaired through restitution or compensation.

It can take forms such as:

• acknowledgement of the breach;
• expression of regret;
• formal apology; or
• another appropriate form of recognition.

Satisfaction must remain proportionate to the injury and should not take a humiliating form.

What Are Serious Breaches of Peremptory Norms?

ARSIWA contains special rules dealing with serious breaches of obligations arising under peremptory norms of general international law.

A serious breach involves a gross or systematic failure by a State to fulfil such an obligation.

In such circumstances, States are required to cooperate through lawful means to bring the serious breach to an end.

States must also not recognise as lawful a situation created by such a serious breach or render aid or assistance in maintaining that situation.

These rules reflect the broader interest of the international community in protecting fundamental norms of international law.

Who Can Invoke State Responsibility?

The responsibility of a State may ordinarily be invoked by an injured State.

Article 42 identifies circumstances in which a State qualifies as an injured State.

However, Article 48 also allows States other than an individually injured State to invoke responsibility where the obligation breached:

• is owed to a group of States and protects a collective interest; or
• is owed to the international community as a whole.

This reflects the idea that some international obligations protect broader community interests rather than merely bilateral rights.

What Are Countermeasures in State Responsibility?

Countermeasures are otherwise unlawful acts temporarily taken by an injured State in response to the internationally wrongful conduct of another State.

Their purpose is to induce the responsible State to comply with its international obligations.

Countermeasures are subject to strict conditions. They must be proportionate and cannot affect certain protected obligations.

In particular, countermeasures cannot justify violations of obligations relating to:

• the prohibition on the threat or use of force;
• fundamental human rights;
• humanitarian obligations prohibiting reprisals; and
• other obligations arising from peremptory norms.

Countermeasures must therefore be distinguished from punishment or retaliation.

Difference Between State Responsibility and State Liability

State responsibility should not be confused with liability for lawful activities.

State responsibility arises from an internationally wrongful act.

By contrast, certain international rules may impose obligations concerning compensation or risk even where the underlying activity is not prohibited by international law.

This distinction is particularly relevant in areas such as hazardous activities and transboundary environmental harm. The principle of State sovereignty in environmental law, for example, recognises both a State’s authority over resources within its territory and its responsibility concerning environmental harm beyond its jurisdiction.

The ILC has also historically distinguished responsibility for internationally wrongful acts from questions concerning injurious consequences arising from activities not prohibited by international law.

Difference Between State Responsibility and Individual Criminal Responsibility

State responsibility and individual criminal responsibility operate at different legal levels.

State responsibility concerns the legal consequences arising from wrongful conduct attributable to a State.

International criminal responsibility concerns the responsibility of individuals for international crimes such as genocide, war crimes or crimes against humanity.

The same factual situation may potentially give rise to both forms of responsibility.

For example, individuals may incur criminal responsibility for international crimes while a State may separately incur responsibility for violating treaty obligations or customary international law.

The existence of one form of responsibility does not automatically exclude the other.

Importance of State Responsibility in International Law

The law of State responsibility performs an important structural function in the international legal system.

It ensures that international obligations are not merely theoretical. When a State violates an obligation, international law provides principles for determining attribution, breach and remedies.

The doctrine also promotes legal accountability between States by establishing:

• when conduct is legally connected to a State;
• when an international obligation has been breached;
• when exceptional defences may apply;
• who may invoke responsibility; and
• what remedies follow from the wrongful act.

The framework therefore connects substantive international obligations with mechanisms of legal consequence and reparation.

Conclusion

State responsibility under international law is the legal framework through which States are held accountable for internationally wrongful acts. The modern structure is primarily reflected in the 2001 Articles on Responsibility of States for Internationally Wrongful Acts prepared by the International Law Commission.

The two central requirements are attribution of conduct to the State and breach of an international obligation. Once both are established, international responsibility generally follows unless a recognised circumstance precluding wrongfulness applies.

Responsibility may arise from the conduct of State organs, bodies exercising governmental authority, persons acting under State instructions or control and, in certain situations, conduct initially undertaken by private actors but later adopted by the State.

The consequences of responsibility may include cessation, guarantees of non-repetition and full reparation through restitution, compensation or satisfaction. Special consequences may also arise where serious breaches of peremptory norms are involved.

Cases such as Nicaragua v United States, Bosnia and Herzegovina v Serbia and Montenegro, United States Diplomatic and Consular Staff in Tehran, Factory at Chorzów, and Armed Activities on the Territory of the Congo have played an important role in explaining attribution, control, reparation and other principles of State responsibility.

Together, these rules form one of the fundamental mechanisms through which international law seeks to maintain accountability, legal order and compliance among States.

Note: This article was originally written by Sparsh Bagga (Amity Law School Noida)and published on 29 June 2021. It was subsequently updated by the LawBhoomi team on 25 September 2026.