THE ROLE OF DUE DILIGENCE IN INTERNATIONAL LAW

2019 ◽  
Vol 68 (04) ◽  
pp. 1041-1054
Author(s):  
Neil McDonald
Keyword(s):  
International Law ◽  
General Principle ◽  
Component Part ◽  
Due Diligence ◽  
Legal Requirement ◽  
The United Kingdom ◽  
Primary Rule ◽  
Fact Finding ◽  
Policy Guidance

AbstractThis article makes two main propositions about the role of due diligence in international law, in response to recent interest in the topic. First, a legal requirement to exercise due diligence may be a component part of a primary rule of international law, but this can only be determined by referring back to the primary rule in question (eg what degree of fact-finding does treaty provision X require a State party to that treaty to undertake, either explicitly or implicitly, to act consistently with its terms?). In other words, there is no ‘general principle of due diligence’ in international law. Second, States undertake what could be characterised as ‘due diligence’ activity (eg by introducing policy guidance for their officials), some elements of which may be a result of a legal requirement and some of which may not (eg where done solely for policy reasons). Current practice of the United Kingdom and United States is used to illustrate the point. The lack of a distinction between the ‘legal’ and ‘non-legal’ elements of conduct in a given area gives States the flexibility to act without feeling unduly constrained by international law, and at the same time actually promotes compliance with international law and may assist in its development over time. In contrast, pushing for a ‘general principle of due diligence’ in international law is unnecessary, and risks having a chilling effect on this positive legal/policy ‘due diligence’ behaviour by States.

The Chilcot Report

2019 ◽  
pp. 273-288
Author(s):  
Stephen Bouwhuis
Keyword(s):  
Decision Making ◽  
United Kingdom ◽  
International Law ◽  
Legal Practice ◽  
Ethical Aspects ◽  
Legal Advice ◽  
The United Kingdom ◽  
General Relevance ◽  
The Government

The inquiry by the United Kingdom into its decision to intervene in Iraq is one of the longest running and most comprehensive examinations of government decision-making. In particular, the inquiry examined in detail the processes by which legal advice was provided to and formed a part of the decision by the Government of the United Kingdom to intervene in Iraq. Through this lens, the current chapter examines what the inquiry illustrates about the general relevance of international law to the decision to intervene in Iraq and more broadly what illustrates about the role of international law in decision-making more generally. In particular, the chapter pertains to the practical and ethical aspects providing international legal advice to government as well as the nature of government legal practice more generally.

The Lex Fori

2019 ◽  
pp. 172-194
Author(s):  
Adrian Briggs
Keyword(s):  
Public Policy ◽  
United Kingdom ◽  
International Law ◽  
Private International Law ◽  
English Court ◽  
Conflict Of Laws ◽  
The United Kingdom ◽  
Foreign Law ◽  
The Law

This chapter examines of the role of the lex fori in English private international law before proceeding to examine the rules of the conflict of laws applicable in an English court. Issues for which the rules of the conflict of laws select the lex fori as the law to be applied include grounds for the dissolution (as distinct from nullity) of marriage, even if the marriage has little or nothing to do with the United Kingdom; or settlement of the distribution of assets in an insolvency even though there may be significant overseas elements. Where the rules of the conflict of laws select a foreign law, its application, even though it is proved to the satisfaction of the court, may be disrupted or derailed by a provision of the lex fori instead. The remainder of the chapter covers procedural issues; penal, revenue, and public laws; and public policy.

scholarly journals An Introduction: International Law as Instrument

2019 ◽  
Vol 113 ◽  
pp. 1-2
Author(s):  
Rebecca Ingber ◽  
Neha Jain ◽  
Rahim Moloo
Keyword(s):  
Climate Change ◽  
International Law ◽  
International Organizations ◽  
Cross Border ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
Humanitarian Crises ◽  
International Legal System ◽  
Fact Finding

Discussions of international law often focus on questions of constraint and prohibition. This year's Annual Meeting considered the role of international law as an instrument. Actors on the international stage use a variety of tools to address their concerns, from climate change to economic development; from humanitarian crises to cross-border disputes; from commercial regulation to global trade. Governments and international organizations employ diplomacy and coercion, corporations use negotiation and persuasion, and non-governmental organizations engage in fact-finding and advocacy. And all of these actors affect and are affected by international law and use the international legal system to effectuate change and solve problems.

International Law for Cyberspace

2021 ◽  
pp. 577-594
Author(s):  
Thomas Wingfield ◽  
Harry Wingo
Keyword(s):  
International Law ◽  
Law Of The Sea ◽  
Due Diligence ◽  
International Peace ◽  
Academic Literature ◽  
Law And Policy ◽  
Cyber Espionage ◽  
Developing Area ◽  
Telecommunications Law

This chapter describes the role of international law in cyberspace and in addressing the legality of cyber-related actions taken by countries, companies, associations, and citizens on the world stage. Cyberspace has been described as a new ‘domain’ that is radically different from the land and sea upon which international law developed, but such law either covers or is evolving to cover issues that have been under development for hundreds of years. Such coverage includes the international law principles of sovereignty, due diligence, jurisdiction, and state responsibility. International law also covers numerous specialized regimes: human rights, diplomatic and consular law, law of the sea, air law, space law, and international telecommunications law. Another developing area of international law and cyberspace concerns international peace and security with respect to cyber activities, but those issues lead right up to the threshold of conflict. The once theoretical and purely academic literature of cybercrime, cyber espionage, and, especially, cyberwar must now be applied to real-world cases, and law and policy for the future of cybersecurity must be formulated with an understanding of these broadly accepted international norms.

scholarly journals The role of conservators in facilitating the theft and trafficking of cultural objects: the case of a seized Libyan statue

2017 ◽  
Vol 48 ◽  
pp. 117-123 ◽  
Author(s):  
Neil Brodie
Keyword(s):  
United Kingdom ◽  
Critical Discussion ◽  
The State ◽  
Due Diligence ◽  
Cultural Objects ◽  
The United Kingdom ◽  
Cultural Sites ◽  
Demand Reduction ◽  
The World

AbstractA 2015 court judgment in the United Kingdom ruled that a seized Libyan statue should be returned to the ownership of the State of Libya. The judgment prompts a critical discussion of the involvement of professional conservators in the trafficking of cultural objects. Higher standards of due diligence are recommended for conservators and other professional experts engaging with cultural objects that might have been stolen and trafficked. Stronger professional due diligence is but one component of a broader policy of demand reduction that will be necessary to control the theft and trafficking of cultural objects, and to offer protection to cultural sites around the world.

The Role of Academics in the Legal System

2005 ◽  
Author(s):  
William Twining ◽  
Ward Farnsworth ◽  
Stefan Vogenauer ◽  
Tesón Fernando
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Legal System ◽  
Civil Law ◽  
Legal Scholarship ◽  
The United Kingdom ◽  
System P ◽  
The Relationship

This article considers the ways in which legal scholars relate to and participate in practical legal affairs. The discussion covers audiences and influence of legal scholars in the United Kingdom; the relationship between the American legal academy and the institutions; civil law systems; the nature of international legal scholarship; and the influence of international legal scholars on international law.

scholarly journals Kilka uwag o genezie i roli Sądu Sesji w Królestwie Szkocji (1532–1707)

Prawo ◽  
2020 ◽  
Vol 330 ◽  
pp. 29-39
Author(s):  
Mateusz Szymura
Keyword(s):  
United Kingdom ◽  
Great Britain ◽  
International Law ◽  
The Other ◽  
Main Thesis ◽  
The United Kingdom ◽  
Scottish Parliament ◽  
Independent Entity ◽  
The One

Some remarks on the origins and role of the Court of Session in the Kingdom of Scotland (1532–1707)The purpose of this article is to illustrate the origins and evolution of the central court of the Kingdom of Scotland from its inception in 1532 until the end of the Kingdom as an independent entity of international law following its establishment in 1707 of the United Kingdom of Great Britain. The analysis of the structure of the court is based on the laws of the old Scottish Parliament, and the main thesis of the study is the evolutionary nature of the provisions constituting the Court of Sessions which, on the one hand, were a continuation of the King’s previous jurisdictional powers and, on the other hand, were part of a wider trend towards separation of central courts from the royal councils in European monarchies. Einige Bemerkungen zur Genese und Bedeutung von "Court of Session" im Königreich Schottland (1532–1707)Gegenstand dieses Beitrages ist die Darstellung der Genese und der Evolution des zentralen Gerichtes im Königreich Schottland in der Zeit von seiner Entstehung im Jahre 1532 bis zum Ende des Königreiches als ein unabhängiges Subjekt des internationalen Rechtes, infolge der Entstehung im Jahre 1707 des Vereinigten Königreiches von Großbritannien. Grundlage der Analyse der Struktur des Gerichtes stellen die Gesetze des ehemaligen schottischen Parlamentes und die wichtigste These der Bearbeitung stellt der evolutionäre Charakter der Lösungen dar, die zur Gründung von Court of Session geführt haben. Diese stellten einerseits die Fortführung der früheren Befugnisse des Königs im Bereich Jurisdiktion, andererseits aber waren sie in den europäischen Monarchien ein Teil der umfassenderen Bewegung der Aussonderung der Zentralgerichte aus der Institution der königlichen Räte.

scholarly journals POLYCENTRICITY AND POLYPHONY IN INTERNATIONAL LAW: INTERPRETING THE CORPORATE RESPONSIBILITY TO RESPECT HUMAN RIGHTS

2021 ◽  
Vol 70 (1) ◽  
pp. 133-164
Author(s):  
Enrico Partiti
Keyword(s):  
Human Rights ◽  
International Law ◽  
Corporate Responsibility ◽  
Due Diligence ◽  
Polycentric Governance ◽  
Additional Layer ◽  
Business And Human Rights ◽  
Management Processes ◽  
Interpretive Authority

AbstractComplex multi-actors and multi-level governance structures have emerged in areas that were traditionally exclusively the preserve of the State and treaty-making. The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGP) affirmed a corporate responsibility to respect human rights to be implemented through human rights due diligence (HRDD), ie via management processes. The open-ended character of the UNGP generated the emergence of other soft instruments offering guidance to corporations in structuring HRDD. This contribution conceptualises the UNGP from the perspective of regulation as a principles-based exercise in polycentric governance reliant on regulatory intermediaries for interpretation. It then assesses the role of various sui generis normative instruments in providing interpretation to the UNGP and, how the presence of an additional layer of interpretative material contributes to the institutionalisation of responsible corporate conduct. The analysis of instruments drafted by international, non-governmental and business organisations reveals both a decentralising tension between different intermediaries due to disagreements and divergence concerning the precise extent of corporate human rights responsibilities, as well as attempts to centralise the interpretation of the UNGP. The article concludes by recommending some caution towards the employment of polycentric governance regimes and their lack of centralised interpretive authority in this domain of international law and suggests possible ways to formally establish centralised interpretation.

Reflections on the role of due diligence in clarifying State discretionary powers in developing Arctic natural resources

Polar Record ◽  
2020 ◽  
Vol 56 ◽  
Author(s):  
Nigel Bankes
Keyword(s):  
Natural Resources ◽  
International Law ◽  
Due Diligence ◽  
Preliminary Assessment ◽  
International Court Of Justice ◽  
International Court ◽  
Private Actors ◽  
And Control ◽  
Discretionary Powers

Abstract This article argues that the concept of diligence provides a useful role in clarifying (and perhaps narrowing) the discretionary powers of the State with respect to the development of natural resources. The claim has two branches. First, the concept of due diligence plays an important role in bridging the normative gap between the harms caused by private actors and the international law of State responsibility. It is the vehicle by which States can be made to assume responsibility for private developments within their jurisdiction and control that cause harm to other States. Second, the concept of due diligence plays an important role (a “generative role”) in teasing out the detailed logical implications of more abstract primary norms such as the duty of prevention. These derivative duties include the duties to make a preliminary assessment of whether the proposed activity may cause a risk of significant transboundary harm: to conduct an environmental impact assessment (EIA) if there is a risk of significant harm and, if the EIA confirms that risk, to notify and consult with respect to possible measures to prevent or mitigate that risk. The article demonstrates both of these claims through an examination of the jurisprudence of the International Court of Justice, the International Tribunal for the Law of the Sea and arbitral awards. Finally, the article applies these claims in the context of possible resource developments in Alaska, British Columbia and Yukon that may have transboundary implications.

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