4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict.[11]

Article 19 was deleted from the final Draft Articles.[12]

Attribution

Before a state can be held responsible for any action, it is necessary to prove a causal connection between the injury and an official act or omission attributable to the state alleged to be in breach of its obligations. This has become an increasingly significant contemporary issue, as non-state actors such as Al Qaeda, multinational corporations, and non-governmental organisations play greater international roles, and as governments privatise some traditional functions.

The state is responsible for all actions of its officials and organs, even if the organ or official is formally independent[13] and even if the organ or official is acting ultra vires.[14] Persons or entities not classified as organs of the State may still be imputable, when they are otherwise empowered to exercise elements of governmental authority, and act in that capacity in the particular instance. Persons or entities not performing public functions may equally be imputable, if they in fact acted under the direction or control of the State.[15] Where there is a breakdown of normal governmental authority and control, such as in so-called "failed states", the actions of those acting as the "government" in a de facto sense will be acts of the state.[16] The acts of an "insurrectional or other movement that becomes the new government of an existing state or succeeds in establishing a new state" can also be attributed to the state.[17] This is also the case where a state acknowledges and adopts the conduct of private persons as its own.[18]

Despite their apparent concreteness, the standards stated in some rules involve important ambiguities, and their application will often require significant fact-finding and judgment. Most rules state responsibility involving private acts already arise under primary rules. For example, environmental and human rights agreements require states to prevent abuses by private parties.

Defences

If the general elements to establish state responsibility are established, the question arises as to whether any defences may be available to the respondent state.

These include force majeure (Article 23), distress (Article 24), state of necessity (Article 25) and counter measures (Articles 49-52), self-defence (article 21) and consent (article 20).

Consequences of breach

The breach of an international obligation entails two types of legal consequences. Firstly, it creates new obligations for the breaching state, principally, duties of cessation and non-repetition (Article 30), and a duty to make full reparation (Article 31). Article 33(1) characterises these secondary obligations as being owed to other states or to the international community as a whole. Articles indirectly acknowledges in a savings clause also that states may owe secondary obligations to non-state actors such as individuals or international organisations.

Second, the articles create new rights for injured states, principally, the right to invoke responsibility (Articles 42 and 48) and a limited right to take countermeasures (Articles 49-53). These rights, however, are heavily state-centred and do not deal with how state responsibility is to be implemented if the holder of the right is an individual or an organisation. The principal element of progressive development in this area is Article 48, which provides that certain violations of international obligations can affect the international community as a whole such that state responsibility can be invoked by states on behalf of the larger community. This provision picks up on the ICJ's celebrated suggestion in Barcelona Traction that some obligations are owed erga omnes, toward the international community as a whole.[19]

Reparations

If illegal actions are continuing, the state has a duty to cease.[20] The state also has duties to make reparation, which could involve restitution, compensation, or satisfaction. Remedies will be dependent on the particular forum, such as the United Nations, International Court of Justice, World Trade Organisation, International Tribunal for the Law of the Sea, International Criminal Court, and on the purpose of reparation.[21]