2 'Ordinary' state responsibility

2.1. PRECONDITIONS OF STATE RESPONSIBILITY

The basic precondition of State responsibility is the commission of a wrongful act by a State. For a wrongful act to occur, some subjective and objective elements are necessary. The subjective elements are: (i) the imputability to a State of conduct (action or omission) of an individual contrary to an international obligation; (ii) in some limited instances, the fault (culpa) of the State official performing the wrongful act. The objective elements are: (i) the inconsistency of particular conduct with an international obligation; (ii) a material or moral damage to another inter­national subject; (iii) the absence of any of the various circumstances precluding wrongfulness.

2.2 CONSEQUENCES OF THE WRONGFUL ACT

(i) The notion of injured State. Consistently with what has been stated above about the damage as an essential requirement of State responsibility, it must be held that by 'injured State' is meant any State that, in consequence of another State's violation of an international obligation, faces the breach of its own corresponding right as well as a material or moral damage. It is therefore the injured State that is entitled to invoke the consequences of the wrongful act vis-a-vis the responsible State.

(ii) Obligations of the responsible State. The delinquent State is under several obligations, owed to the victim State and to it alone. First, it must cease the wrong­doing, if it is continuing. Second, it must 'offer appropriate assurances and guarantees of non-repetition, if circumstances so require' (Article 30(b) of ILC Draft). Third, it must 'make full reparation for the injury caused' (Article 31.1 of the same ILC Draft). Fourth, if it refuses to make reparation or to pay compensation to the extent required by the injured State, pursuant to Article 2.3 of the UN Charter the responsible State must accede bona fide to any attempt peacefully to settle the dispute made by the injured State.

As far as reparation is concerned, it is now clear that modern international law establishes a hierarchy between the various modes of making reparation. In case of material damage, the responsible State must provide restitution in kind, to the extent possible. Pursuant to Article 35 of ILC Draft, restitution means 'to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation'.

(iii) Rights, powers, and obligations of the injured State: in particular, the right to resort to countermeasures. In correlation to the obligations incumbent upon the responsible State, rights and powers accrue to the injured State (in particular, the right to claim cessation of the wrongful act, assurances and guarantees of non-repetition, and full reparation for the material or moral damage caused), together with some obligations.

The injured State, if it decides to invoke the responsibility of another State, must take the following steps.

(1) It must 'give notice of its claim to that State' and specify in particular '(a) the conduct that the responsible State should take in order to cease the wrongful act, if it is continuing; (b) what form reparation should take' (Article 43 of ILC Draft).

(2) If the responsible State does not comply with its request, the injured State must endeavour to settle the dispute by peaceful means and in particular embark upon, or at least propose, negotiations, or mediation, conciliation, or arbitration (Article 52(1)(b) of ILC Draft only requires that the injured State must 'offer to negotiate' with the responsible State).

(3) Only if the responsible State refuses to make reparation or to enter into negoti­ations, conciliation, or arbitration, or manifestly does not act bona fide in responding to the offer for negotiations or dispute settlement, is the injured State entitled to resort to countermeasures (according to Article 52(1) of ILC Draft, countermeasures may be taken after the failure of the parties concerned to negotiate with a view to settling the matter). As staged above (3.5 and 13.3), the need to go through this process before initiating countermeasures follows from the general obligation to endeavour, in good faith, to settle disputes peacefully.