State Responsibility

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Strengthening the rule of law in time of war: An IHL perspective on the present and future of the Articles on State Responsibility

International humanitarian law is one of the oldest areas of international law. As such, it was unsurprisingly a key source for the International Law Commission in its work on the Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereafter ‘Articles’). This is apparent, among other things, from the frequent references to IHL in Special Rapporteur Crawford’s First and Second reports or in the final text of the Articles with commentaries. The Articles have also had significant impact on the application and interpretation of IHL over the past two decades. They have become an indispensable resource in analysing State responsibility for violations of IHL both in theory and in practice. This can be seen in the growing number of references to the Articles in decisions of international tribunals, including those concerning specific questions of IHL (see e.g. this 2007 report by the UN Secretary General for several examples). It is also confirmed by the prominent role given to the Articles in IHL studies, such as the ICRC’s…

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Articles on Responsibility of States for Internationally Wrongful Acts and Human Rights Practice

How should we consider the relationship between the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) and human rights practice over the past 20 years? Provocative positions have at times been expressed. At one end of the spectrum are assertions of the ‘irrelevance’ of ARSIWA to human rights treaties (Evans 2004), or the latter being…

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The Tenacity of the Articles on State Responsibility as a General and Residual Framework: An Appraisal

The twenty-year old Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) are considered one of the cornerstones of international law and they are widely referenced by international judicial bodies. They form a unified regime of responsibility, expressing the core ideas of responsibility applicable to the breach of any and all obligations of states (ARSIWA,…

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State Responsibility and Privatisation: Accommodating Private Conduct in a Public Framework

One of the foundations of modern international law is the separation of an international realm in which state public activity is regulated from the realm of commercial markets and private law relations. The international dimensions of private law are shaped by public international law, but more directly governed by rules of private international law which allocate authority between…

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Protecting Community Interests: Solidarity Measures within the State Responsibility Regime?

The ultimate test to assess any new development of international law is simple: has it made the world a better place? In 2001, the invisible college of international lawyers had welcomed the International Law Commission (ILC)’s bold decision to codify, within its Articles, a regime of State responsibility towards the international community as a whole, devoting to the…

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