OMC et Imputation - Les organes de l'Etat: De Deux Apparences Trompeuses (WTO and Attribution - State Organs: On Two Deceptive Appearances)
OMC ET RESPONSABILITE, V. Tomkiewicz, ed., Bruxelles, Larcier, Forthcoming
26 Pages Posted: 23 Aug 2012 Last revised: 30 Aug 2012
Date Written: July 30, 2012
Attribution of conduct to the State is of central importance in WTO law as well as in other parts of international law. It is largely based on the concept of State organ since « the conduct of any State organ shall be considered an act of that State under international law » (article 4 ARSIWA). This contribution aims at examining how WTO law captures this concept, in a context of fragmentation of State apparatuses. At first sight, differences between general international law and WTO law seem to appear. While the former undoubtedly includes the territorial divisions of the State in the category of State organs, the latter seems to exclude them. Conversely, while the latter expands the class of organs to include functional divisions, the former does not seem to consider it. But appearances are deceptive. In both cases, a closer examination reveals reconciliations. Regarding territorial divisions, WTO law aligned with general international law by assimilating them to organs of its members. In regards to functional divisions, the concept of State organ as designed in general international law is wider than it seems and is therefore likely to include them.
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