State Responsibility

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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 domestic legal orders (or, perhaps increasingly, to arbitral tribunals and transnational law). The boundary between these domains – an important and contested public-private distinction in international law – is policed by legal rules at both the international and domestic level. In the first half of the twentieth century, one principal concern was whether acts by public authorities should sometimes be characterised as private and regulated by domestic law and courts, and thus the rule that state immunity does not cover commercial acts was crystallised, alongside other comparable exclusions. This symposium contribution is focused on the opposite concern – whether the conduct of ostensibly private actors should sometimes be characterised as public, and thus included in the domain of…

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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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Still Going Strong: Twenty Years of the Articles on State Responsibility’s ‘Paradoxical’ Relationship between Form and Authority

The year after the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) were completed, David Caron wrote an insightful piece decrying the ‘paradoxical relationship’ between form and authority that he thought the Articles embody. He believed that the Articles were destined to become influential even though they are not formally binding and contain provisions…

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The impact and influence of the Articles on State Responsibility on the work of the International Law Commission and beyond

The International Law Commission’s (ILC or Commission) decision, 20 years ago, to suggest the General Assembly (UNGA) to simply “take note” of the draft articles on State Responsibility, instead of recommending their adoption as a treaty or the convening of a diplomatic conference, inaugurated a debate about “codification light”, “the paradox between form and authority” or…

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The ILC’s work on State responsibility: personal reflections

In 1995, the English version of the Commentary on the UN Charter I had organized and edited at the initiative and with the support of the German Foreign Office was presented to the UN in New York. Shortly thereafter, I got a phone call from an official of the UN Department at the Foreign Office who, after expressing…

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