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The Application of the Articles on Responsibility of States for Internationally Wrongful Acts in the WTO Regime

In this short post, I consider the unique application of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) to the special regime of the World Trade Organization, an organization that has had a variable relationship with international law over the years. Consistent with Article 55 of ARSIWA which privileges “special rules” of responsibility only to the extent that they seek to derogate from the general framework, a WTO panel in Korea – Government Procurement has confirmed the “residual” application of general international law norms, including ARSIWA, when it stated that they apply “to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement”.  The post considers first circumstances where WTO rules, as well as panels and (the erstwhile) Appellate Body interpreting them, contract out of the general framework of ARSIWA; it then sets out the circumstances in which ARSIWA has been directly or indirectly referenced and/or applied; and concludes with future areas in which the application of ARSIWA might arise at…

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The Articles on Responsibility of States for Internationally Wrongful Acts and the making of international investment law

In modern international law, the relationship between state responsibility and the protection of foreigners and their property is one of cross-fertilization and even common origin. When in 1924 the League of Nations commenced its efforts to codify international law, state responsibility was included as one of the subjects for potential international regulation. It was referred to as the…

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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…

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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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