ARSIWA Article 2

Article 2 of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), adopted by the ILC in 2001 and commended to States by the UN General Assembly in Resolution 56/83 of 12 December 2001, supplies the foundational definition of state responsibility. It provides that there is an internationally wrongful act of a State when conduct, consisting of an action or omission, (a) is attributable to the State under international law and (b) constitutes a breach of an international obligation of the State. These two cumulative conditions — the subjective or attribution element and the objective or breach element — are the constituent elements of every wrongful act and govern the entire architecture of the secondary rules of responsibility. The provision codifies principles affirmed by the Permanent Court of International Justice in the Phosphates in Morocco case (1938) and the Factory at Chorzów case (1928), and reaffirmed by the ICJ in the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia, 1997).

The Article deliberately distinguishes secondary rules (the conditions and consequences of responsibility) from primary rules (the substantive obligations whose breach gives rise to responsibility). Article 2 therefore does not specify which obligations exist; it specifies when their violation engages responsibility. Three doctrinal features follow. First, conduct includes omissions as well as positive acts — the ICJ in the Corfu Channel case (United Kingdom v. Albania, 1949) held Albania responsible for failing to warn of mines. Second, attribution is determined by the rules in ARSIWA Articles 4–11 (organs, persons exercising governmental authority, conduct directed or controlled by the State). Third, fault, damage, and intent are not general requirements under Article 2; whether they are needed depends on the content of the primary obligation breached, a point the ILC Commentary stresses against the "fault" and "damage" theories of older doctrine.

In contemporary practice (2026), Article 2 remains the indispensable starting point in inter-State litigation and arbitration. The ICJ applied its logic in Bosnia Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, 2007), where attribution under the "effective control" test (Article 8) was decisive, and in Certain Activities/Construction of a Road (Costa Rica v. Nicaragua, 2015). Investment tribunals and the WTO dispute system likewise treat the two-element test as the customary baseline, even though ARSIWA remains a non-binding instrument that the General Assembly has repeatedly deferred converting into a convention (most recently noting it in successive resolutions).

For the international law paper of UPSC, FSOT, CSS and BCS examinations, Article 2 is high-yield. The typical question angle asks candidates to state the two cumulative conditions, distinguish primary from secondary rules, and explain why fault and damage are not autonomous requirements. Examiners frequently pair Article 2 with the attribution articles (4 and 8), the Nicaragua (1986) and Bosnia Genocide (2007) control tests, and the Chorzów Factory principle of full reparation. A strong answer names ARSIWA, GA Resolution 56/83, the ILC, and at least one PCIJ or ICJ authority, and explicitly identifies action-or-omission, attribution, and breach as the three textual pillars.