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State Responsibility Notes

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Definition: circumstances where state will incur legal responsibility for violating a primary obligation of international law + consequences flowing from the breach
? i.e. breach of primary obligation of IL giving rise to secondary obligations of state resp.

Sources of primary obligations (i) Customary IL (ii) Treaties, incl. SC Res under Chapter VII UN Charter (iii) General principles of IL ILC Draft Articles 2001 (60 Arts in 3 Parts)

Validity - codification of customary IL + progressive development
? Passed following lengthy negotiations b/w states, largely accepted as common practice (contrast with ILC Draft Arts on Diplomatic Protection)
? Crawford Commentaries - distinguished writings of jurists under Art 38(1)(d) ICJ Statute also possibly a source of law

4 requirements (1) Internationally wrongful act (2) Breach (3) Attribution (4) Circumstances precluding wrongfulness (5) Consequences Internationally wrongful act + breach

Art 1 - every internationally wrongful act of state entails international resp. of that state
? NB: UN (Reparations for Injuries Case) + liability of UN for actions of its organs (for other int. org. - Art 58)

Art 2 - int. wrongful act or omission = attributable to the state under IL & constitutes breach of int. obl.
? Internationally wrongful act/omission - characterisation of act as int. wrongful is governed by IL (Art 3) so domestic provisions can't be invoked to deny wrongfulness
= Act or omission (US Hostages Case)
? Breach = objective theory (strict liability - most widely used) or subjective (requires fault) - not pronounced on in Arts. - only requirement of causality. Dixon suggests applying strict liability for jus cogens& fault approach for other obligations. o Caire Claim - court confirmed no fault on the part of Mexico was required o Corfu Channel - fault is required Attribution

Art 4 - conduct of any state organ as determined by IL is attributable to that state
? Responsibility attaches to the office/position
? Can't invoke provisions of domestic constitutional order/law to escape liability
? Person or entity - in broad sense, includes any natural or legal person, incl. individual office holder, department, commission, other body exercising public authority
? Irrelevant whether person/entity acting in that capacity had improper motives/was abusing power (Caire Claim
- Mexican soldiers acted under colour of authority; i.e. in uniform)

Art 5 - conducts of persons or entities exercising elements of govt. authority is attributable, as long as it acts in that capacity
? E.g. airline controlling immigration; privately run prisons in UK

Art 6 - conducts of organs placed at disposal of a state by another state
? Not very rare! E.g. Switzerland acting on behalf of Lichtenstein;

Art 7 - conduct of organ of state/person or entity empowered to exercise elements of govt. authority will be attributable to it if they act in that capacity, even if exceeds govt. authority or contravenes it o Caire Claim-murder of French nat.'l by 2 Mexican officers who, after failing to extort money, took Caire to barracks & shot him. Held: even though acted outside their competence/superiors countermanded the order, it involve state resp. b/c acted under cover of their status using means placed

their disposal on acc of that status

Art 8 - conduct directed or controlled by the state
? 2 types of cases (i) where states supplement their own action by recruiting/instigating private persons or groups who act as "auxiliaries" while remaining outside official structure of the state - e.g. persons sent as "volunteers" to neighbouring countries/instructed to carry out certain missions abroad (ii) under direction & control of state - organised/non organised groups in another state's territory

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