Article 41 ARSIWA in Action?

Article 41 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) provides for certain particular consequences that a serious breach of a peremptory norm of general international law (jus cogens) entails. These are legal consequences that the internationally wrongful act of a ‘responsible State’ attracts ‘for all other States’ (ARSIWA Commentary, 111-112, para 7), that is, obligations of third States. Its Article 41(2) provides for the duty not to recognize as lawful a situation created by the serious breach, nor render aid or assistance in maintaining that situation (together: ‘obligations of non-recognition and non-assistance’). An often-raised criticism against Article 41(2) is that the obligations of non-recognition and non-assistance are difficult to apply to jus cogens violations that do not give rise to a clearly identifiable territorial “unlawful situation” (eg Talmon, 107, 117). This difficulty is particularly apparent in modern forms of slavery, which, unlike violations of jus ad bellum or the prohibition of apartheid, do not necessarily constitute a distinct territorial situation.

The European Union’s ‘Forced Labour Regulation on prohibiting products made with forced labour on the Union market’ (Regulation (EU) 2024/3015, hereinafter: ‘FLR’) addresses one form of modern slavery; it prohibits economic operators, that is, natural or legal person or association of persons, from placing or making available products made with forced labour on the Union market or exporting such products from the Union (FLR, Art 3). On 30 June 2026, the implementation phase began for all actors involved—Member State authorities, economic operators and the European Commission—with the publication of the Commission’s Guidelines on the application of the Regulation (‘Guidelines’) and the Forced Labour Single Portal, a publicly accessible information portal containing a risk database. This marks the beginning of a preparatory period until 14 December 2027, when the FLR becomes applicable and enforcement begins. This preparatory phase provides an opportunity to consider whether, and to what extent, the FLR gives practical effect to the consequences of serious violations of jus cogens reflected in Article 41(2) ARSIWA.

As this blogpost argues, the FLR may be particularly well suited to implementing Article 41(2) ARSIWA. It gives practical effect to these general international-law obligations by addressing the consequences of certain serious violations of jus cogens (1) arising from unlawful situations of modern slavery (2) and by requiring Member States to adopt measures that substantially replicate the duties of non-recognition and non-assistance (3).

Modern Slavery as ‘Serious Breaches of Jus Cogens’?

Under Article 41 ARSIWA, particular consequences follow for all States from ‘serious breaches of peremptory norms of general international law (jus cogens)’. Because of the lack of universally accepted definition of modern forms of slavery, it is controversial whether they constitute violations of peremptory norms. The recently adopted FLR (preambular para 3 and Art 2(1)) aims to eradicate forced labour worldwide, understood as ‘forced or compulsory labour as defined in Article 2 of ILO Convention No 29’. Numerous ILO bodies consider the prohibition of the use of forced or compulsory labour in all its forms as peremptory norm (eg Myanmar report, paras 203, 538; Committee of Experts report, paras 252, 947) and some committees of the European Parliament referred to its ‘absolute or peremptory nature’ (eg amended recital 3 of the draft FLR here, here, or here). Such claims must be treated with caution. On the one hand, as forced labour is not unqualified but excludes from its scope prisoners’ work or compulsory military draft (see Art 4(3) ECHR), one may claim that the prohibition of forced labour is itself not absolute, therefore not a jus cogens norm (see Allain). On the other hand, any modern form of slavery (including institutions and practices similar to slavery, human trafficking, forced labour, and child labour) may constitute violations of peremptory norms so far as they entail slavery, torture, or crimes against humanity which do fall within the non-exhaustive list of jus cogens norms of the ILC (see Jus cogens report 2022, Conclusion 23). For instance, a range of exploitative practices may amount to slavery or servitude if they reach the threshold of control tantamount to possession (Report of the Special Rapporteur, para 5).

In the past, the European Commission considered the prohibition of forced labour as jus cogens (Communication of 1996, 13). The Commission’s recent guidelines clarify that the ban of the FLR on forced labour products on EU market ‘is unconditional and absolute, due to the importance of the human rights violation’ (Guidelines, 8), giving the impression that the underlying wrong arises from a qualified, arguably jus cogens rule.

The ILC finds a ‘serious breach’ ‘if it involves a gross or systematic failure by the responsible State to fulfil the obligation’ (Art 40(2) ARSIWA; Jus cogens report 2022, Conclusion 19(3)). The ILC requires “serious” as a threshold criterion, ‘a certain order of magnitude’ of the violation (ARSIWA Commentary, 113, para 8). It defines “systematic” as a violation that is ‘carried out in an organized and deliberate way’, while “gross” ‘refers to the intensity of the violation or its effects; it denotes violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule’ (ibid.). Some States suggested that further clarification be provided as to the criteria for defining what constitutes a serious breach, beyond the above-mentioned basic definitions (State comments, 84-85 (Colombia), 88 (Poland)).

To some extent, the EU’s FLR reflects the limitation of the duties arising from jus cogens violations to “serious” breaches. The FLR emphasises that forced labour ‘constitutes a serious violation of human dignity and fundamental human rights’ and ‘widespread’ practice (FLR, preambular paras 1-2). It requires the Commission to establish a database of forced labour risks that ‘shall prioritise the identification of widespread and severe forced labour risks’ (FLR, Art 8(1)). Similarly, the Commission’s Guidelines require companies to identify and address forced-labour risks in their operations and supply chains by prioritising ‘the most significant risks first, based on their severity and likelihood’ (Guidelines, 59). While recognising that forced labour ‘is by nature a very serious human-rights abuse’, the Commission explains that such “prioritisation” means focusing preventive and mitigation efforts ‘where forced labour risks are most likely and widespread’ (ibid., n 162). All these rules indicate that the FLR aims to regulate the consequences of serious breaches of jus cogens.

“Situations” of Modern Slavery?

The obligations of non-recognition and non-assistance require an underlying unlawful situation. In its everyday meaning, “situation” means a ‘state of affairs, a set of circumstances’ which the internationally wrongful act produced. The ILC seems to understand “situation” as involving either a continuing breach of an international obligation, such as the violation of a people’s right to self-determination through belligerent occupation or the maintenance of a racially discriminatory policy, or an instantaneous breach producing continuing effects, such the deportation or forcible transfer of a population (on this distinction: ILC Commentary of 1976, 93, para 21; Aust, 338-340). In each case, the wrongful act gives rise to a continuing consequence whose maintenance itself engages the duties of third States. Therefore, for the ILC, the obligations of non-recognition and non-assistance do not cover consequences from contribution or support of the actual breach but only consequences from the maintenance of the unlawful situation (Jus cogens report 2022, 78, para 16). This raises a particular difficulty in relation to modern slavery, where it may be considerably harder to identify a comparable continuing “situation” to which those duties could attach.

The EU’s FLR enshrines both elements of an “unlawful situation” under Article 41(2) ARSIWA: an identifiable state of affairs resulting from a serious jus cogens violation, and a continuing consequence of that wrong whose maintenance entails obligations for third States.

First, the FLR provides for tools to identify systemic instances involving forced labour. For instance, the Union Network Against Forced Labour Products, a coordination platform between the competent authorities of the Member States and the Commission, shall
‘monitor situations of systemic use of forced labour’ (FLR, Art 6(7)(l)). In a similar sense, the guidance to prioritise ‘general areas where forced labour risks are most likely to occur and be most significant’ relies on geographic areas, sectors, products or companies with severe and likely forced labour risks (Guidelines, 57-58). On the Single Portal, the EU database of forced labour risks, currently under development, will provide information on products and geographical areas where forced labour risks have been detected on account of credible, publicly available sources.

The Commission and the competent authorities of the Member States shall follow a risk-based approach when assessing the likelihood of a violation of the forced labour ban (FLR, Art 14). In prioritising products suspected of being made with forced labour, this assessment shall take into account factors including ‘the scale and severity of the suspected forced labour’ (FLR, Art 16(2)(a)). As the Commission explains, all instances of forced labour may be considered severe, but ‘some situations can be considered particularly severe’ based on certain factors. Indicators of severity include, among others, ‘the long duration or recurring nature of the forced labour practices’ and ‘the systemic nature of the alleged forced labour, such as the involvement of the state itself in imposing, or being complicit in, the forced labour’ (Guidelines, 14). The prioritised, high-risk instances identified through these indicators are likely to correspond, in substance, to the “unlawful situation” under Article 41(2) ARSIWA.

Second, the continuing consequence of the jus cogens violation is a tangible fruit, namely the product made with forced labour. While forced labour may contribute to services too, the FLR is limited to products, defined as ‘a product for which forced labour has been used in whole or in part at any stage of its extraction, harvest, production or manufacture, including in the working or processing related to a product at any stage of its supply chain’ (FLR, Art 2(7)). The placing or making available on the Union market, or the exporting, of products made with forced labour contributes to maintaining an unlawful situation and perpetuates the generation of illicit proceeds. This consequence of the unlawful situation entails certain third State obligations that in substance correspond to non-recognition and non-assistance.

Third State Obligations

Article 41(2) ARSIWA enshrines two key obligations: non-recognition and non-aid or non-assistance. The content of non-recognition is not ‘producing legal effects at the international level and in the respective national systems’ (Fifth report of Arrangio-Ruiz, 29, para 50). In other words, States shall deny any legal effect to the unlawful situation (Talmon, 116; Azarova, 33). The FLR has the effect of invalidating transactions violating the ban on products made with forced labour: where the lead competent authority establishes a violation of the ban, it shall prohibit the placing or making available of the products concerned on the Union market and on exporting them and order its withdrawal (FLR, Art 20(4)).

Aid or assistance under Article 41(2) ARSIWA implies ‘the taking of positive acts’ (A/CN.4/SR.2662, 393, para 45 (Gaja)) that materially facilitate the maintenance of an unlawful situation. The FLR provides several measures capable of preventing or interrupting such assistance in situations of forced labour, including guidance for economic operators on supply-chain due diligence (FLR, Art 11(a); Guidelines, 49–68); requirements for economic operators under assessment to provide information on measures taken to identify, prevent, mitigate, end or remediate forced-labour risks (FLR, Art 17(1)); and investigations and field inspections by Member State authorities or the Commission to reduce or eliminate the risk of forced labour (FLR, Arts 18-19).

All these obligations of Member States and the Commission serve to prevent legal effects from being accorded to products resulting from situations of modern slavery and to prevent material contribution to their maintenance. As noted above, the FLR’s drafting history and the Guidelines suggest that EU institutions sought to protect a peremptory norm. Although there is no evidence that they or Member States view the FLR as implementing Article 41(2) ARSIWA, some international lawyers argue that legislation restricting imports linked to forced labour gives practical effect to that provision (eg GLAN, para 23; El Amouri, 713).

Conclusions

While the FLR’s main provisions will only apply from 2027, it demonstrates how EU legislation can give practical effect to the obligations of non-recognition and non-assistance under Article 41(2) ARSIWA. More broadly, EU, international and domestic measures addressing modern slavery—including corporate due diligence and transparency legislation—can contribute to fulfilling these obligations where they are applied consistently and systematically to prevent wrongdoer States and private actors from benefiting from, or normalising an economy based on modern slavery.