Draft articles on State Responsibility adopted by the International

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DRAFT ARTICLES ON STATE RESPONSIBILITY
WITH COMMENTARIES THERETO
ADOPTED BY THE INTERNATIONAL LAW COMMISSION
ON FIRST READING
January 1997
97-02583

INTRODUCTION
At its forty-eighth session, held from 6 May to 26 July 1996,
the International Law Commission adopted provisionally, on first
reading, draft articles on State responsibility. The State
Responsibility draft consists of 60 articles which are divided into
three parts and accompanied by two annexes. Part One. Origin of
international responsibility contains articles 1 to 35 which were
provisionally adopted from 1973 to 1980 and adopted with some
revisions on first reading in 1980. Part Two. Content, forms and
degrees of international responsibility contains articles 36 to 53
and Part Three. Settlement of Disputes contains articles 54 to 60
which, together with the two annexes relating to dispute settlement
procedures, were provisionally adopted from 1983 to 1996 and
adopted with some revisions on first reading in 1996.
The complete text of the State responsibility draft adopted on
first reading is contained in the Report of the International Law
Commission on the work of its forty-eighth session, 6 May-26 July
1996 (Official Records of the General Assembly. Fifty-first
Session, Supplement No. 10 (A/51/10 andCorr.l, pp. 125-151)). The
commentaries to the draft articles and annexes, as provisionally
adopted from 1973 to 1996, are contained in the annual reports of
the International Law Commission, most of which have been
reproduced in the Commission's yearbooks issued to date, as
indicated in the asterisk accompanying the commentary to each
article. The references in the footnotes contained in the
commentaries are to the Commission's annual reports, unless
otherwise indicated.
As recorded in paragraph 64 of the above-mentioned report, the
Commission decided, in accordance with articles 16 and 21 of its
Statute, that these draft articles should be transmitted through
the Secretary-General to Governments for comments and observations
and that it should be requested that such comments and observations
be submitted to the Secretary-General by 1 January 1998. In
paragraph 5 of its resolution 51/160 of 16 December 1996 entitled
"Report of the International Law Commission on the work of its
forty-eighth session", the General Assembly drew the attention of
Governments to the importance, for the International Law
Commission, to have their views on the draft articles on State
responsibility, adopted on first reading by the Commission, and
urged them to present in writing their comments and observations by
1 January 1998, as requested by the Commission.
The Secretariat has prepared the attached consolidated text of
the draft articles and of the commentaries thereto for the
convenience of Governments in responding to the above request.

CONTENTS
Part One. Origin of international
responsibility
CHAPTER I. GENERAL PRINCIPLES
Article 1. Responsibility of a State for its
internationally wrongful acts . .
Article 2. Possibility that every State may
be held to have committed an
internationally wrongful act. . .
Article 3. Elements of an internationally
wrongful act of a State
Article 4. Characterization of an act of a
State as internationally wrongful 12
CHAPTER II. THE "ACT OF THE STATE" UNDER
INTERNATIONAL LAW 16
Article 5. Attribution to the State of the
conduct of its organs 19
Article 6. Irrelevance of the position of the
organ in the organization of the
State 21
Article 7. Attribution to the State of tne
conduct of other entities empowered
to exercise elements of the
government authority 26
Article 8. Attribution to the State of the
conduct of persons acting in fact
on behalf of the State 32
Article 9. Attribution to the State of the
conduct of organs placed at its
disposal by another State or by
an international organization . . 35
(i)
CONTENTS (continued)
Page
Article 10. Attribution to the State of
conduct of organs acting outside
their competence or contrary to
instructions concerning their
activity 40
Article 11. Conduct of persons not acting on
behalf of the State 49
Article 12. Conduct of organs of another
State 62
Article 13. Conduct of organs of an
international organization. . . . 66
Article 14. Conduct of organs of an
insurrectional movement 70
Article 15. Attribution to the State of the
act of an insurrectional movement
which becomes the new government
of a State or which results in
the formation of a new State. . . 78
CHAPTER III. BREACH OF AN INTERNATIONAL
OBLIGATION 85
Article 16. Existence of a breach of an
international obligation. . . . 88
Article 17. Irrelevance of the origin of the
international obligation breached. 89
Article 18. Requirement that the international
obligation be in force for the
State 97
Article 19. International crimes and
international delicts 105
Article 20. Breach of an international
obligation requiring the adoption
of a particular course of
conduct 132
(ii)
CONTENTS (continued)
Paae
Article 21. Breach of an international
obligation requiring the
achievement of a specified
result 139
Article 22. Exhaustion of local remedies 151
Article 23. Breach of an international
obligation to prevent a given
event 172
Article 24. Moment and duration of the breach
of an international obligation by
an act of the State not extending
in time 177
Article 25. Moment and duration of the breach
of an international obligation by
an act of the State extending in
time 180
Article 26. Moment and duration of the breach
of an international obligation to
prevent a given event 188
CHAPTER IV. IMPLICATION OF A STATE IN THE
INTERNATIONALLY WRONGFUL ACT OF
ANOTHER STATE 189
Article 27. Aid or assistance by a State to
another State for the commission of
an internationally wrongful act. . 190
Article 28. Responsibility of a State for an
internationally wrongful act of
another State 196
CHAPTER V. CIRCUMSTANCES PRECLUDING
WRONGFULNESS 209
Article 29. Consent 212
Article 30. Countermeasures in respect of an
internationally wrongful act. . . 218
(iii)
CONTENTS (continued)
Page
Article 31. Force maieure and fortuitous event 22 5
Article 32. Distress 236
Article 33. State of necessity 239
Article 34. Self-defence 258
Article 35, Reservation as to compensation
for damage 267
Part Two. Content, forms and degrees of
international responsibility. . . 269
CHAPTER I.
GENERAL PRINCIPLES 269
Article^36
[art.l] Consequences of an internationally
wrongful act 269
Article 37
[art.2]
Lex specialis 269
Article 38
[art.3]
Customary international law. . .. 270
Article 39
[art.4]
Relationship to the Charter of
Article 40
the United Nations 2 70
[art.5]
Meaning of injured State 2 71
CHAPTER II RIGHTS OF THE INJURED STATE AND
OBLIGATIONS OF THE STATE WHICH HAS
COMMITTED AN INTERNATIONALLY
WRONGFUL ACT 2 74
Article 41 Cessation of wrongful conduct . .. 274
[art.6]
The number appearing between square brackets indicates the
original number of the drafc article as provisionally adopted before
1996 and as referred to in the commentaries.
(iv)
CONTENTS (continued)
Paqe
Article 42. Reparation 277
[art.6bis]
Article 43. Restitution in kind . 282
[art.7]
Article 44. Compensation 287
[art.8]
Article 45. Satisfaction 296
[art.10]
Article 46. Assurances and guarantees of
[art.lObis]
non-repetition 301
CHAPTER III.
COUNTERMEASURES 304
Article 47.
Countermeasures by an injured State 305
Article 48.
Conditions relating to resort to
countermeasures 310
Article 49.
[art.13]
Proportionality 316
Article 50.
[art.14]
Prohibited countermeasures 321
CHAPTER IV.
Article 51. INTERNATIONAL CRIMES 345
Consequences of an international
Article 52.
crime 345
Article 53.
Specific consequences 347
Part Three.
Obligations for all States 349
Article 54.
Settlement of disputes 352
[art.l]
Negotiation 352
Article 55.
[art.2] Good offices and mediation 354
(v)
CONTENTS (continued)
Page
Article 56. Conciliation 355
[art.3]
Article 57. Task of the Conciliation Commission 357
tart.4]
Article 58. Arbitration 361
[art.5]
Article 59. Terms of reference of the Arbitral
[art.6]
Tribunal 364
Article 60. Validity of an arbitral award. . . 3 65
[art.7]
Annex I. The Conciliation Commission. . .. 368
Annex II. The Arbitral Tribunal. 371
(vi)