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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 presented as ‘lex specialis’ in respect of ARSIWA as a whole (Mapiripán, para 107) (see also Katja Creutz’s post in this symposium). At the other, is a maelstrom of academic criticism when human rights courts depart from the ARSIWA framework. Behind these positions lurk serious questions as to the influence that ARSIWA has had, and should have. Simply put, how much do the Articles actually matter to the challenges facing human rights today? A detailed analysis of ARSIWA’s contribution and potential obviously goes beyond the remit of this blog. But a few reflections are offered on i) the nature of ARSIWA’s real, and growing, influence; ii) areas of progress and tensions; and iii) some…

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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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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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