{"id":30344,"date":"2026-11-13T12:00:38","date_gmt":"2026-11-13T11:00:38","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=30344"},"modified":"2026-11-12T10:02:04","modified_gmt":"2026-11-12T09:02:04","slug":"article-41-arsiwa-in-action","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/article-41-arsiwa-in-action\/","title":{"rendered":"Article 41 ARSIWA in Action?"},"content":{"rendered":"

Article 41 of the ILC\u2019s Articles on the Responsibility of States for Internationally Wrongful Acts<\/u><\/a> (ARSIWA) provides for certain particular consequences that a serious breach of a peremptory norm of general international law (jus cogens<\/em>) entails. These are legal consequences that the internationally wrongful act of a \u2018responsible State\u2019\u00a0attracts \u2018for all other States\u2019 (ARSIWA Commentary<\/u><\/a>, 111-112, para 7), that is, obligations of third States.\u00a0Its 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: \u2018obligations of non-recognition and non-assistance\u2019). An often-raised criticism against Article 41(2) is that the\u00a0obligations of non-recognition and non-assistance are difficult to apply to jus cogens<\/em> violations that do not give rise to a clearly identifiable territorial \u201cunlawful situation\u201d (eg Talmon<\/u><\/a>, 107, 117). This difficulty is particularly apparent in modern forms of slavery, which, unlike violations of jus ad bellum<\/em> or the prohibition of apartheid, do not necessarily constitute a distinct territorial situation.<\/p>\n

The European Union\u2019s \u2018Forced Labour Regulation on prohibiting products made with forced labour on the Union market\u2019 (Regulation (EU) 2024\/3015<\/u><\/a>, hereinafter: \u2018FLR\u2019)\u00a0addresses 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\u2014Member State authorities, economic operators and the European Commission\u2014with the publication of the\u00a0Commission\u2019s Guidelines on the application of the Regulation<\/u><\/a> (\u2018Guidelines\u2019) and the\u00a0Forced Labour Single Portal<\/u><\/a>, 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.\u00a0This 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<\/em> reflected in Article 41(2) ARSIWA.<\/p>\n

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<\/em>\u00a0(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).<\/p>\n

Modern <\/strong>S<\/strong>lavery as \u2018<\/strong>S<\/strong>erious <\/strong>B<\/strong>reaches of <\/strong>J<\/strong><\/em>us <\/strong><\/em>C<\/strong><\/em>ogens<\/strong><\/em>\u2019?<\/strong><\/p>\n

Under Article 41 ARSIWA, particular consequences follow for all States from \u2018serious breaches of peremptory norms of general international law (jus cogens<\/em>)\u2019. 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 \u2018forced or compulsory labour as defined in Article\u00a02 of ILO Convention No\u00a029\u2019. Numerous ILO bodies consider\u00a0the prohibition of the use of forced or compulsory labour in all its forms as peremptory norm (eg Myanmar report<\/u><\/a>, paras 203, 538; Committee of Experts report<\/u><\/a>, paras 252, 947) and some committees of the European Parliament referred to its \u2018absolute or peremptory nature\u2019 (eg amended recital 3 of the draft FLR here<\/u><\/a>, here<\/u><\/a>, or here<\/u><\/a>). Such claims must be treated with caution. On the one hand, as forced labour is not unqualified but excludes from its scope prisoners\u2019 work or compulsory military draft (see Art 4(3) ECHR<\/u><\/a>), one may claim that the prohibition of forced labour is itself not absolute, therefore not a jus cogens<\/em> norm (see Allain<\/u><\/a>). 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\u00a0which do fall within the non-exhaustive list of jus cogens<\/em> norms of the ILC (see Jus cogens<\/em><\/u> report 2022<\/u><\/a>, 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<\/u><\/a>, para 5).<\/p>\n

In the past, the European Commission considered the prohibition of forced labour as jus cogens<\/em> (Communication of 1996<\/u><\/a>, 13). The Commission\u2019s recent guidelines clarify that the ban of the FLR on forced labour products on EU market \u2018is unconditional and absolute, due to the importance of the human rights violation\u2019 (Guidelines<\/u><\/a>, 8), giving the impression that the underlying wrong arises from a qualified, arguably jus cogens<\/em> rule.<\/p>\n

The ILC finds a \u2018serious breach\u2019 \u2018if it involves a gross or systematic failure by the responsible State to fulfil the obligation\u2019 (Art 40(2) ARSIWA; Jus cogens<\/em><\/u> report 2022<\/u><\/a>, Conclusion 19(3)). The ILC requires \u201cserious\u201d as a threshold criterion, \u2018a certain order of magnitude\u2019 of the violation (ARSIWA Commentary<\/u><\/a>, 113, para 8). It defines \u201csystematic\u201d as a violation that is \u2018carried out in an organized and deliberate way\u2019, while \u201cgross\u201d \u2018refers 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\u2019 (ibid.). Some States suggested that further clarification be provided as to the criteria for defining what constitutes a serious breach,\u00a0beyond the above-mentioned basic definitions (State comments<\/u><\/a>, 84-85 (Colombia), 88 (Poland)).<\/p>\n

To some extent, the EU\u2019s FLR reflects the limitation of the duties arising from jus cogens<\/em> violations to \u201cserious\u201d breaches. The FLR emphasises that forced labour \u2018constitutes a\u00a0serious violation of human dignity and fundamental human rights\u2019 and \u2018widespread\u2019 practice (FLR, preambular paras 1-2). It requires the Commission to establish a database of forced labour risks that \u2018shall prioritise the identification of widespread and severe forced labour risks\u2019 (FLR, Art 8(1)). Similarly, the Commission\u2019s Guidelines require companies to identify and address forced-labour risks in their operations and supply chains by prioritising \u2018the most significant risks first, based on their severity and likelihood\u2019 (Guidelines<\/u><\/a>, 59). While recognising that forced labour \u2018is by nature a very serious human-rights abuse\u2019, the Commission explains that such \u201cprioritisation\u201d means focusing preventive and mitigation efforts \u2018where forced labour risks are most likely and widespread\u2019 (ibid., n 162). All these rules indicate that the FLR aims to regulate the consequences of serious breaches of jus cogens<\/em>.<\/p>\n

\u201cSituations\u201d of Modern Slavery?<\/strong><\/p>\n

The obligations of non-recognition and non-assistance require an underlying unlawful situation. In its everyday meaning<\/u><\/a>, \u201csituation\u201d means a \u2018state of affairs, a set of circumstances\u2019 which the internationally wrongful act produced. The ILC seems to understand \u201csituation\u201d as involving either a continuing breach of an international obligation, such as the violation of a people\u2019s 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<\/u><\/a>, 93, para 21; Aust<\/u><\/a>, 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<\/em><\/u> report 2022<\/u><\/a>, 78, para 16). This raises a particular difficulty in relation to modern slavery, where it may be considerably harder to identify a comparable continuing \u201csituation\u201d to which those duties could attach.<\/p>\n

The EU\u2019s FLR enshrines both elements of an \u201cunlawful situation\u201d under Article 41(2) ARSIWA: an identifiable state of affairs resulting from a serious jus cogens<\/em> violation, and a continuing consequence of that wrong whose maintenance entails obligations for third States.<\/p>\n

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
\n\u2018monitor situations of systemic use of forced labour\u2019 (FLR, Art 6(7)(l)). In a similar sense, the guidance to prioritise \u2018general areas where forced labour risks are most likely\u00a0to occur and be most significant\u2019 relies on geographic areas, sectors, products or companies with severe and likely forced labour risks (Guidelines<\/u><\/a>, 57-58). On the Single Portal, the<\/u> EU database of forced labour risks<\/u><\/a>, 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.<\/p>\n

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 \u2018the scale and severity of the suspected forced labour\u2019 (FLR, Art 16(2)(a)). As the Commission explains, all instances of forced labour may be considered severe, but \u2018some situations can be considered particularly severe\u2019 based on certain factors. Indicators of severity include, among others, \u2018the long duration or recurring nature of the forced labour practices\u2019 and \u2018the systemic nature of the alleged forced labour, such as the involvement of the state itself in imposing, or being complicit in, the forced labour\u2019 (Guidelines<\/u><\/a>, 14). The prioritised, high-risk instances identified through these indicators are likely to correspond, in substance, to the \u201cunlawful situation\u201d under Article 41(2) ARSIWA.<\/p>\n

Second, the continuing consequence of the jus cogens<\/em> 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 \u2018a\u00a0product 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\u00a0product at any stage of its supply chain\u2019 (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.<\/p>\n

Third State<\/strong> O<\/strong>bligations <\/strong><\/p>\n

Article 41(2) ARSIWA enshrines two key obligations: non-recognition and non-aid or non-assistance. The content of non-recognition is not \u2018producing legal effects at the international level\u00a0and in the respective national systems\u2019 (Fifth report of Arrangio-Ruiz<\/u><\/a>, 29, para 50). In other words, States shall deny any legal effect\u00a0to the unlawful situation (Talmon<\/u><\/a>, 116; Azarova<\/u><\/a>, 33). The FLR has the effect of invalidating transactions violating the ban on products made with forced labour: where the lead competent authority establishes\u00a0a 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)).<\/p>\n

Aid or assistance under Article 41(2) ARSIWA implies \u2018the taking of positive acts\u2019\u00a0(A\/CN.4\/SR.2662<\/u><\/a>, 393, para 45 (Gaja))\u00a0that 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<\/u><\/a>, 49\u201368); 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).<\/p>\n

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.\u00a0As noted above, the FLR\u2019s 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<\/u><\/a>, para 23; El Amouri,<\/u><\/a> 713).<\/p>\n

Conclusions<\/strong><\/p>\n

While the FLR\u2019s 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\u2014including corporate due diligence and transparency legislation\u2014can 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

Article 41 of the ILC\u2019s 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 \u2018responsible State\u2019\u00a0attracts \u2018for all other States\u2019 (ARSIWA Commentary, […]<\/p>\n","protected":false},"author":41,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[4836,8034,4004,7520,5608],"article-categories":[3572],"authors":[8161],"doi":[],"class_list":["post-30344","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-european-union","tag-international-labour-law","tag-ilc","tag-ius-cogens","tag-slavery","article-categories-symposium","authors-antal-berkes"],"acf":{"subline":"The EU\u2019s Forced Labour Regulation and the Consequences of Jus Cogens Violations"},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30344","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/41"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=30344"}],"version-history":[{"count":2,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30344\/revisions"}],"predecessor-version":[{"id":30348,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30344\/revisions\/30348"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=30344"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=30344"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=30344"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=30344"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=30344"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=30344"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}