5.4 State Responsibility

Nature: international law's law of wrongs — the consequences following a state's breach of an international obligation. The charter: the ILC's Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA, 2001) — never a convention, yet authoritative as largely customary law. The general rule (ARSIWA Art. 2 — the two elements): (a) conduct attributable to the state; (b) breach of an international obligation — responsibility is objective (fault generally not required). Attribution's rules (Arts. 4–11): organs of the state — any organ, legislative/executive/judicial, central or local (Art. 4); entities exercising governmental authority (Art. 5); ultra vires acts still attributable (Art. 7 — the abusive official); direction and control (Art. 8 — private persons under the state's effective control: the Nicaragua standard, against the ICTY's Tadić "overall control"); organs placed at disposal by another state (Art. 6); insurrectional movements (Art. 10 — successful insurgents inherit their pre-victory wrongs); acknowledged and adopted conduct (Art. 11). Consequences (Arts. 28–37): cessation and assurances of non-repetition; reparation — the Chorzów Factory principle (PCIJ 1928): reparation must "wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed" — full reparation in three forms: restitution (return of territory, persons, property); compensation (financially assessable damage, including lost profits); satisfaction (acknowledgment,…