Why This Matters
A foreign national is killed in riots while the police stand by. A state nationalises foreign-owned property without compensation. A state-owned chemical plant leaks toxic gas across the border. In each case the question is identical: is the state responsible under international law, and if so, what must it do? State responsibility is the enforcement backbone of international law. Without it, obligations are aspirational. With it, they are actionable. The OU examiner uses this chapter to test both doctrinal knowledge and applied reasoning, making it one of the highest Part C generators in the entire PIL paper.
Chapter Overview
This chapter answers four questions:
- What is an international delinquency? The elements that constitute a wrongful act attributable to a state.
- When is a state responsible? Attribution rules for organs, officials, and private persons.
- What are the consequences? Reparation: restitution, compensation, satisfaction.
- What are the defences? Consent, self-defence, necessity, force majeure.
International Delinquency: Definition and Elements
An international delinquency is an act or omission attributable to a state that constitutes a breach of its international obligation and causes injury to another state or its nationals.
Three elements must be present. First, the act or omission must be attributable to the state under international law. Second, the conduct must constitute a breach of an international obligation binding on that state. Third, injury must result, though the ILC Articles on State Responsibility (2001) treat injury as subsumed within the breach itself for most purposes.
The ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001), while not a binding treaty, represent the most authoritative codification of customary international law on state responsibility. The ICJ treats them as declaratory of existing custom.
A ttribution: the act must be attributable to the state
B reach: of an international obligation binding on that state
I njury: to another state or its nationals
Attribution: When Is Conduct the State's?
Attribution is the process of connecting a wrongful act to the state as a legal person. Not every harmful act occurring within a state's territory is attributable to that state.
Acts of State Organs
The conduct of any state organ is attributable to the state under Article 4 of the ILC Articles, regardless of whether the organ acts within or outside its competence.
A state organ includes all persons or entities forming part of the state's structure: the legislature, the executive, the judiciary, the armed forces, and the police. The state cannot escape responsibility by arguing that an official exceeded their authority. If the official acted with apparent authority or used powers conferred by state office, the act is attributed to the state. This rule is expressed as: the state is responsible for the ultra vires acts of its officials where those officials acted in their official capacity.
Acts of Private Persons
A state is not automatically responsible for the acts of private individuals. Responsibility arises in three situations:
Failure to prevent: A state has a duty to exercise due diligence to prevent foreseeable harm to foreign nationals on its territory. If rioters attack a foreigner and the state fails to take reasonable preventive measures despite prior warning, the state bears responsibility for its own failure of due diligence, not for the rioters' acts directly.
Failure to punish: A state that fails to investigate, prosecute, and punish those who injure foreign nationals on its territory incurs responsibility for denial of justice.
Subsequent endorsement: If a state later endorses or adopts the conduct of private persons, those acts become attributable to the state from the moment of endorsement.
📋 Facts: Iranian students seized the US Embassy in Tehran in November 1979, taking diplomats hostage. The Iranian government failed to protect the embassy and subsequently endorsed the seizure. The USA brought proceedings before the ICJ.
⚖️ Issue: Whether Iran was responsible for the seizure initially carried out by private individuals.
🏛️ Held: Iran was held responsible on two grounds. First, it failed its duty under the Vienna Convention on Diplomatic Relations to protect the embassy. Second, when Iranian state organs endorsed and continued the occupation, the conduct became attributable to the state directly. Iran was ordered to release the hostages and pay reparation.
🎯 Principle: A state incurs responsibility both for failing to protect foreign missions and for subsequently adopting the conduct of private persons through endorsement. Two distinct bases of responsibility can apply to the same facts.
🔗 Full case notes
The Standard of Due Diligence
Due diligence is the standard applied to assess state responsibility for acts of private persons. It does not require absolute prevention of all harm. It requires the state to take all reasonable measures within its power to prevent foreseeable harm and to respond effectively when harm occurs.
The standard is not uniform: it is higher where risk is foreseeable and the state has capacity to act, lower where harm is unforeseeable or state capacity is limited.
Treatment of Aliens
A state has obligations under international law regarding the treatment of foreign nationals on its territory. Two competing standards have been argued:
The International Minimum Standard holds that all states must treat foreign nationals in accordance with a minimum standard of civilised treatment, regardless of how they treat their own nationals. If a state's domestic standard falls below this minimum, the international standard governs. Oppenheim and most Western states support this position.
The National Treatment Standard holds that a state owes foreign nationals the same treatment it accords its own nationals, neither more nor less. Latin American states advanced this position through the Calvo Doctrine.
The international minimum standard is the dominant view in customary international law. The ILC Articles and ICJ practice confirm that foreign nationals are entitled to protection that may exceed the domestic standard where that standard is inadequate.
📋 Facts: An American national, Neer, was killed in Mexico. His widow claimed Mexico was responsible for failing to apprehend and punish the killers. The Mexican investigation was perfunctory.
⚖️ Issue: What standard of treatment does a state owe to foreign nationals on its territory?
🏛️ Held: The treatment of an alien must amount to an outrage, bad faith, wilful neglect of duty, or an insufficiency of governmental action so far short of international standards that every reasonable person would readily recognise its insufficiency. Mexico's conduct did not reach this threshold.
🎯 Principle: The international minimum standard requires egregious failure, not mere inadequacy. The Neer threshold is the classic statement of the standard for denial of justice.
🔗 Full case notes
| Dimension | International Minimum Standard | National Treatment Standard |
|---|---|---|
| Basis | Universal floor of civilised treatment | Equality with domestic nationals |
| Supported by | Western states, Oppenheim, ILC Articles | Latin American states, Calvo Doctrine |
| Effect if domestic standard is low | International standard prevails | Foreign national gets same poor treatment |
| Modern position | Dominant view in customary IL | Rejected by most international tribunals |
Expropriation and Nationalisation
A state has the sovereign right to expropriate foreign-owned property, but international law requires that expropriation be for a public purpose, non-discriminatory, and accompanied by prompt, adequate, and effective compensation.
The Hull Formula requires prompt, adequate, and effective compensation. Prompt means without undue delay. Adequate means equivalent to the market value of the expropriated property. Effective means payment in a form usable by the recipient: convertible currency, not inconvertible bonds.
Discriminatory expropriation targeting only foreign nationals or nationals of a particular state is internationally wrongful regardless of compensation. Confiscation without any compensation is a clear violation of international minimum standards.
P rompt: without undue delay
A dequate: equivalent to market value
E ffective: in usable, convertible form
Violation of any element makes expropriation internationally wrongful.
Consequences of State Responsibility: Reparation
The primary consequence of an internationally wrongful act is the obligation to make full reparation for the injury caused.
The PCIJ stated in the Chorzow Factory Case (1928) that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would have existed if the act had not been committed.
Three forms of reparation are recognised:
Restitution: Restoration of the situation that existed before the wrongful act. This is the primary form: return of confiscated property, release of detained persons, revocation of unlawful measures. Required unless materially impossible or disproportionately burdensome.
Compensation: Payment of the financial equivalent of harm where restitution is impossible or insufficient. Covers material damage: loss of property, loss of profits, and expenses incurred as a result of the wrongful act.
Satisfaction: Non-material reparation for moral or dignitary harm: acknowledgment of breach, expression of regret, formal apology, or assurance of non-repetition. Appropriate where the wrongful act caused reputational or dignitary harm not covered by compensation.
📋 Facts: Poland expropriated a factory in Chorzow transferred to German companies under a German-Polish Convention. Germany claimed Poland violated its treaty obligations.
⚖️ Issue: What is the standard of reparation for an internationally wrongful act?
🏛️ Held: Reparation must wipe out all consequences of the illegal act and re-establish the situation that would have existed but for the wrongful act. Where restitution is impossible, compensation must cover the value of restitution plus additional damages.
🎯 Principle: The foundational statement of the reparation standard in international law. Full reparation means restoration to the status quo ante. Cited in every State Responsibility answer.
🔗 Full case notes
Defences to State Responsibility
International law recognises six circumstances that preclude the wrongfulness of otherwise unlawful conduct.
Consent: A state that consents to another state's conduct cannot invoke that conduct as a wrongful act. Consent must be valid, prior, and within the consenting state's authority.
Self-defence: Lawful measures of self-defence taken in conformity with the UN Charter preclude wrongfulness. Article 51 requirements: an armed attack must have occurred, the response must be necessary and proportionate, and the Security Council must be notified.
Countermeasures: A state injured by another's wrongful act may take proportionate countermeasures to induce compliance. Must not violate jus cogens obligations and must cease when the wrongful act ends.
Force majeure: An irresistible force or unforeseen event beyond the state's control making performance materially impossible. Distinguished from difficulty: force majeure makes compliance impossible, not merely harder.
Distress: A state official acts in extreme peril to save lives with no other reasonable option available.
Necessity: A state acts to safeguard an essential interest against a grave and imminent peril where no other means is available and the act does not seriously impair an essential interest of the state against whom it is taken. A narrow defence: not available where the state contributed to the situation of necessity.
C onsent
S elf-defence (Article 51 UN Charter)
F orce majeure
D istress
C ountermeasures
N ecessity
Common Confusions
Responsibility requires attribution of conduct to the state, not merely territorial connection. Private acts are not automatically attributable. The state is responsible for its own failure of due diligence: failure to prevent foreseeable harm or failure to punish perpetrators. Tehran Hostages illustrates both bases clearly.
States have sovereign rights to nationalise property for public purposes. Nationalisation becomes internationally wrongful only when discriminatory or when it lacks prompt, adequate, and effective compensation under the Hull Formula. Lawful nationalisation with full compensation is not a delinquency.
They are distinct. Force majeure involves an external irresistible force making compliance materially impossible: the state had no choice. Necessity involves a deliberate state choice to breach an obligation to protect an essential interest: the state chose to act. Force majeure negates volition; necessity acknowledges it but justifies it.
Key Takeaways
Three Elements: ABI: attribution, breach, injury.
Attribution: organs always attributable including ultra vires acts; private persons attributable for failure to prevent, failure to punish, or subsequent endorsement.
Treatment of Aliens: International minimum standard prevails. Neer threshold: egregious failure required.
Expropriation: sovereign right but PAE required. Hull Formula. Discriminatory expropriation wrongful regardless of compensation.
Reparation: three forms: restitution (primary), compensation, satisfaction. Chorzow Factory: wipe out all consequences.
Defences: CS-FD-CN: consent, self-defence, force majeure, distress, countermeasures, necessity.
Memory Hooks: ABI: three elements PAE: Hull Formula CS-FD-CN: six defences International minimum vs national treatment table
International Delinquencies
An international delinquency is an act or omission attributable to a state that constitutes a breach of its international obligation and causes injury to another state or its nationals. Three elements must be established: attribution of conduct to the state, breach of a binding international obligation, and resulting injury.
The ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001) codify the customary rules. A state bears responsibility for the conduct of its organs regardless of whether they act within or exceed their authority. For private acts, responsibility arises from failure to exercise due diligence to prevent foreseeable harm, or failure to investigate and punish perpetrators.
The consequences of an internationally wrongful act are reparation: restitution (primary), compensation for material harm, and satisfaction for non-material harm. The standard was stated by the PCIJ in the Chorzow Factory Case (1928): reparation must wipe out all consequences of the illegal act and re-establish the situation that would have existed but for the wrongful act.
Part B (15 marks)
Discuss the Doctrine of State Responsibility for International Delinquencies
- International delinquency: internationally wrongful act of a state
- Three elements ABI: Attribution to state, Breach of international obligation, Injury (causation)
- ILC Articles on State Responsibility 2001: authoritative codification
- Attribution: state organs always attributable; private persons require failure to prevent or punish
- Tehran Hostages Case 1980: state responsibility for failure to prevent and subsequent endorsement
- Reparation principle: Chorzow Factory 1928; three forms RCS (Restitution, Compensation, Satisfaction)
- Six defences (circumstances precluding wrongfulness): consent, self-defence, countermeasures, force majeure, distress, necessity