State responsibility & sovereignty

The secondary rules: ARSIWA 2001

State responsibility is the body of "secondary rules" that determine the consequences when a state breaches a "primary rule" of international law. The authoritative codification is the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), adopted in 2001 and commended to states by UN General Assembly Resolution 56/83 (12 December 2001). Though not a treaty, ARSIWA is treated by the International Court of Justice as substantially reflecting customary international law; the ICJ relied on its articles in Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997) and Application of the Genocide Convention (Bosnia v. Serbia) (2007).

The two constitutive elements

Under ARSIWA Article 2, an internationally wrongful act exists where conduct (an action or omission): (a) is attributable to the state under international law, and (b) constitutes a breach of an international obligation of that state. Both elements are objective; Article 3 confirms that characterisation of an act as wrongful is governed by international law and is unaffected by its lawfulness under domestic law. This is the principle the Permanent Court of International Justice anticipated in the S.S. Wimbledon (1923) and Chorzow Factory (1928) cases.

Attribution

Attribution links private or institutional conduct to the state itself. Article 4 attributes the conduct of any state organ — legislative, executive or judicial, at any level — to the state. Article 5 covers persons exercising elements of governmental authority; Article 7 establishes that ultra vires acts of organs remain attributable even when they exceed authority or contravene instructions. The hardest questions concern private actors. The ICJ in Nicaragua v. United States (1986) adopted the "effective control" test, requiring control over the specific operations during which violations occurred; the ICTY Appeals Chamber in Tadic (1999) proposed a looser "overall control" test for armed groups, a divergence the ICJ reaffirmed against in Bosnia v. Serbia (2007). Article 11 allows attribution where a state "acknowledges and adopts" conduct as its own — the basis on which the ICJ held Iran responsible in the Tehran Hostages case (United States v. Iran, 1980) once Ayatollah Khomeini endorsed the seizure of the embassy.

Breach and its temporal dimension

Article 12 defines breach as conduct "not in conformity with what is required" by an obligation, regardless of the obligation's origin or character. Articles 14–15 distinguish continuing wrongful acts from composite acts. The breach must coincide with the obligation being in force for the state (Article 13) — the intertemporal principle articulated by arbitrator Max Huber in the Island of Palmas arbitration (1928). These distinctions matter for calculating the duration of a violation and the reparation owed, and recur in exam problems about ongoing occupation, prolonged detention, or sustained environmental harm.

Circumstances precluding wrongfulness

Chapter V of ARSIWA (Articles 20–27) lists six defences that preclude the wrongfulness of an otherwise unlawful act: consent (Art. 20), self-defence consistent with the UN Charter (Art. 21), lawful countermeasures (Art. 22), force majeure (Art. 23), distress (Art. 24) and necessity (Art. 25). Necessity is the most tightly confined: it is available only where the act is the sole means of safeguarding an essential interest against a grave and imminent peril and does not seriously impair an essential interest of other states. The ICJ rejected Hungary's necessity plea in Gabcikovo-Nagymaros (1997). Crucially, Article 26 provides that no circumstance precludes the wrongfulness of any act conflicting with a peremptory norm (jus cogens) — genocide, slavery, aggression, torture admit no defence.

The content of responsibility: reparation

Once responsibility is established, Article 30 requires cessation and assurances of non-repetition, and Article 31 imposes a duty to make full reparation for the injury caused. The governing principle is the Chorzow Factory (PCIJ, 1928) dictum: reparation must "wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed" but for the breach. Articles 34–37 set out three forms: restitution (restoring the status quo ante), compensation (for financially assessable damage, including lost profits), and satisfaction (acknowledgement, apology, or declaratory judgment). The ICJ awarded compensation against Uganda in DRC v. Uganda (Reparations Judgment, 9 February 2022), ordering US$325 million.

Serious breaches and standing

Articles 40–41 create an aggravated regime for serious breaches of peremptory norms, obliging all states to cooperate to end such breaches and not to recognise the resulting situation as lawful — the ex injuria jus non oritur principle applied in the ICJ's Wall Advisory Opinion (2004) and Namibia (1971). Article 48 permits states other than the directly injured state to invoke responsibility for breaches of obligations erga omnes, the concept the ICJ announced in Barcelona Traction (1970) and applied in The Gambia v. Myanmar (Provisional Measures, 2020).

Sovereignty as the organising premise

State responsibility presupposes the sovereign equality of states (UN Charter, Article 2(1)) and the duty of non-intervention, affirmed in UNGA Resolution 2625 (XXV) (Friendly Relations Declaration, 1970) and in Nicaragua (1986). Responsibility is the mechanism by which sovereignty is reconciled with accountability: a sovereign state is free, but liable for the international consequences of its choices.

Why this matters for the exam

State responsibility is a high-frequency, high-discrimination topic across every exam in this shared layer because it is the conceptual hinge connecting substantive rules (use of force, human rights, environment) to consequences. Strong candidates deploy it as an analytical engine, not a list.

Where it is tested

For UPSC GS-2, the syllabus heading "important International institutions, agencies and fora" and bilateral/global groupings invites questions where you must assess whether a state's conduct — a cross-border strike, a treaty suspension, an environmental disaster — engages responsibility and what reparation follows. For the FSOT, the Job Knowledge component tests recognition of doctrines (attribution tests, countermeasures, jus cogens) in scenario form. CSS (International Law optional) and BCS routinely set descriptive and problem questions on ARSIWA, the Chorzow reparation standard, and circumstances precluding wrongfulness.

The PYQ angle and high-yield retention

Examiners favour the contrast between the "effective control" test (Nicaragua, 1986; Bosnia v. Serbia, 2007) and the "overall control" test (Tadic, 1999) — a near-certain short-note or comparison prompt. Memorise the five citation anchors: ARSIWA Article 2 (two elements), Article 4 (organ attribution), Article 25 (necessity), Article 26 (jus cogens bar), and the Chorzow Factory reparation formula. Be able to name the three forms of reparation (restitution, compensation, satisfaction) and one dated instance of each — the DRC v. Uganda US$325 million award (2022) is the freshest compensation example.

Methodologically, answer responsibility questions in sequence: (1) identify the primary obligation breached; (2) test attribution; (3) check for circumstances precluding wrongfulness; (4) state the reparation owed. This four-step structure signals command of the secondary rules and earns method marks even where the facts are ambiguous. Pair the doctrine with sovereignty: cite UN Charter Article 2(1) and Resolution 2625 (1970) to frame why responsibility, not coercion, is the lawful response to wrongdoing between equals.