Due diligence as a secondary rule of general international law

Domestic Law ◽

Secondary Rule ◽

Law Making ◽

Law Commission ◽

Do So

Abstract The conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.

Protecting the Environment During and After Armed Conflict, the International Law Commission and an Overdue Due Diligence Duty for Corporations

Journal of International Humanitarian Legal Studies ◽

10.1163/18781527-bja10037 ◽

2021 ◽

Vol 12 (2) ◽

pp. 314-343

Author(s):

Alexandra Wormald

Keyword(s):

International Law ◽

Armed Conflict ◽

Armed Conflicts ◽

Due Diligence ◽

Stakeholder Consultation ◽

Global Consensus ◽

Abstract Recent years have seen a rising global consensus on the need to ensure appropriate protections for the environment during and after armed conflict. In this context, the International Law Commission provisionally adopted 28 draft principles on the protection of the environment in relation to armed conflicts in July 2019. With stakeholder consultation having concluded in June 2021, this article investigates what practical impacts the corporate due diligence and liability provisions in the draft principles are likely to have on the protection of the environment during and after armed conflict, should the principles be implemented as currently drafted.

The Proliferation of Law-Making Organs: ANew Role for the International Law Commission?

10.1163/9789004420847_010 ◽

2001 ◽

pp. 219-240

Keyword(s):

International Law ◽

Law Making ◽

Member States’ Due Diligence Obligations to Supervise International Organisations

Due Diligence in the International Legal Order ◽

10.1093/oso/9780198869900.003.0004 ◽

2020 ◽

pp. 59-74

Author(s):

Kristina Daugirdas

Keyword(s):

International Law ◽

International Organizations ◽

Third Parties ◽

Due Diligence ◽

International Organisations ◽

Member States ◽

Distinct Category ◽

Private Actors ◽

There are two reasons to consider member states’ obligations to supervise international organisations as a distinct category of due diligence obligations. First, due diligence obligations typically require states to regulate third parties in some way. But it is harder for states to regulate international organisations than other private actors because international law protects the autonomy of international organisations. Second, such due diligence obligations merit attention because they may compensate for the dearth of mechanisms to hold international organisations accountable when they cause harm. This chapter canvasses member states’ existing obligations vis-à-vis international organisations, and argues in particular that the International Law Commission (ILC) missed an opportunity to frame broader obligations when drafting the Articles on the Responsibility of International Organizations (the ARIO). The chapter closes by making the normative case for establishing a due diligence obligation on member states to ensure that international organisations do not abuse their immunities.

The Due Diligence Principle Under International Law

International Community Law Review ◽

10.1163/187197306779173194 ◽

2006 ◽

Vol 8 (1) ◽

pp. 81-121 ◽

Cited By ~ 22

Author(s):

Robert Barnidge

Keyword(s):

International Law ◽

State Responsibility ◽

Due Diligence ◽

State Actors ◽

AbstractThis article explores the interface of state responsibility, non-state actors, and the due diligence principle. It begins by examining the various principles of responsibility under international law. After doing so, it closely considers the deliberations of the International Law Commission on the topic of state responsibility. In light of these developments, attention is then paid to exactly what has been expected of states with regard to the activities of non-state actors during the last century. This overview focuses on the due diligence principle, a principle which, it is argued, can be restrictively or expansively interpreted, as the particular facts and circumstances require, to hold states responsible for their actions or omissions related to non-state actors.

The Process of International Law— Making: The Relationship Between the International Court of Justice and the International Law Commission

International and Comparative Law Review ◽

10.1515/iclr-2016-0027 ◽

2015 ◽

Vol 15 (1) ◽

pp. 7-57 ◽

Cited By ~ 1

Author(s):

Marija Đorđeska

Keyword(s):

International Law ◽

International Court Of Justice ◽

Customary International Law ◽

Court Of Justice ◽

International Court ◽

The Icj ◽

The Relationship ◽

Law Making ◽

Abstract Article 38, para.1, of the Statute of the International Court of Justice (ICJ) defines customary international law as evidence of general practice accepted as law, understood as State practice and opinio juris. However, by identifying certain norms as an international custom without referring to the traditional evidence of State practice and opinio juris, international courts and tribunals are contributing to the formation of customary international law. This paper presents an analysis of how the International Court of Justice contributes to the formation of customary international law by relying on the draft articles of the International Law Commission (ILC). Th e International Court of Justice, in “deciding in accordance with international law”, also authoritatively declares what the current international law is, while the International Law Commission, although constituted of highly qualified publicists from various States, is drafting only non-binding international instruments. By relying on the ILC draft articles and declaring them to be reflecting customary international law-although the draft articles may not be necessary the expression of the States’ practice and their opinio juris, the ICJ creates and generates the creation of customary international law. Interestingly, the ICJ tends to rely mostly on ILC draft articles that refer to the jurisprudence of either the Permanent Court of International Justice (“PCIJ”) or the ICJ itself. Th e paper presents research of approximately 70 ICJ decisions and individual opinions that cite to the work of the ILC. The author notes the evolution of the relationship between the ICJ and the ILC through three different time periods, and presents the findings on how, when and why the ICJ relies on the ILC draft articles. In addition, the author gives examples in which the ICJ rejected the reliance on the ILC’s work, mainly due to the divergent interpretation on the specific area of international law. The ICJ, by relying on the ILC draft articles that in turn refer to the jurisprudence of the ICJ or PCIJ, is not only generating norms of customary international law, but is also reaffirming the importance of its (and PCIJ’s) jurisprudence for the future of international law. Although ICJ decisions are binding only between the parties to the dispute (Art.59 ICJ Statute), the clarification of whether a norm is customary or not, affects the international community of States. Noting the present reluctance of States to adopt treaties, and- hence their potentially decreasing role in international law-making, this research offers an insight into an alternative venue of international law-making. As the international community, and the ILC itself, is regaining interest in the sources of international law, this paper aims to identify the mechanisms of international law-making, the understanding of which will contribute to international law’s needed predictability and a more uniform and reliable interpretation of international law.

The Negotiation of Multilateral Treaties at the United Nations a negotiator’s view

The Oxford Handbook of United Nations Treaties ◽

10.1093/law/9780190947842.003.0037 ◽

2019 ◽

pp. 614-632

Author(s):

Sir Michael Wood

Keyword(s):

Decision Making ◽

International Law ◽

Point Of View ◽

Human Element ◽

Rules Of Procedure ◽

Multilateral Treaty ◽

Good Preparation ◽

Law Making ◽

This chapter reviews options for treaty-making at the UN from the point of view of negotiating parties. The focus is on the negotiation of treaties within the UN itself, with examples taken from a range of UN organs, rather than from codification conferences. A large number of treaties have been negotiated within or under the auspices of various UN organs, and a variety of processes and rules of procedure have been employed. The roles of the UN Secretariat and the UN International Law Commission (ILC) are highlighted. Each negotiation is different, and flexibility is of the essence. The importance of good preparation, choice of decision-making procedures, and the human element is emphasized. The UN remains at the heart of multilateral treaty-making, including as regards “law-making” treaties.

The International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (jus cogens): Making Wine from Water or More Water than Wine

Nordic Journal of International Law ◽

10.1163/15718107-bja10007 ◽

2020 ◽

Vol 89 (2) ◽

pp. 244-270

Author(s):

Dire Tladi

Keyword(s):

International Law ◽

Number Of Factors ◽

Jus Cogens ◽

Peremptory Norms ◽

Law Commission ◽

Do So

In the summer of 2019, the UN International Law Commission adopted a set of Draft Conclusions on Peremptory Norms of General International Law (jus cogens) on first reading. The Draft Conclusions cover various aspects relating to the methodology for the identification of peremptory norms and consequences of peremptory norms. The elaboration of the Draft Conclusions by the Commission provides an opportunity for the clarification of peremptory norms in order to take it out of the proverbial garage. Whether this potential is fulfilled will depend on a number of factors, including whether the Draft Conclusions are coherent, reflect practice, and address important practical considerations. The article suggests that, drawing on existing instruments, the Draft Conclusions formulate existing rules in more precise ways, and do so in a coherent manner.

Treaty-Making Capacity of Components of Federal States from the Perspective of the Works of the UN International Law Commission

Polish Review of International and European Law ◽

10.21697/priel.2016.5.2.01 ◽

2018 ◽

Vol 5 (2) ◽

pp. 9

Author(s):

Karol Karski ◽

Tomasz Kamiński

Keyword(s):

International Law ◽

Federal State ◽

Vienna Convention ◽

International Treaties ◽

Federal States ◽

The Subject ◽

The Law ◽

Formed Part ◽

The submitted paper concerns the treaty-making capacity of components of federal (non-unitary) states. As the division of powers in respect to the conclusion of international treaties between a federal state and its components is based on the provisions of internal federal law, the authors decided to start the consideration of the topic with the presentation of selected appropriate internal law regulations of federal states. Although the study concentrates on an analysis of Swiss and German constitutional rules on the subject, the provisions of i.a. Belgian, US and Canadian law are also commented upon. Therefore it apparently seems to be an important legal question.The treaty-making capacity of components of federal (non-unitary) states was comprehensively discussed during the International Law Commission preparatory works on the regulation on the law of treaties. The provisions dedicated to that issue formed part of the reports prepared by each of the ILC Special Rapporteurs on the subject. The paper presents the draft propositions submitted by them, the views of ILC members, and responses received from states.The final draft of ILC articles on the law of treaties contained a paragraph concerning the issue at stake (than art. 5 § 2 of the draft) stipulating that member states of a federal union may possess such capacity only if such capacity is admitted by the federal constitution and within the scope defined therein. Nevertheless, this issue was omitted in the 1969 Vienna Convention on Law of Treaties (VCLT). Art. 6 of the VCLT on the capacity of States to conclude treaties does not mention the rights of components of federal states. It consists of one paragraph simply stating that every State possesses the capacity to conclude treaties. And the term ‘state’ for the purposes of that regulation possesses the same meaning as i.a. in the Charter of the United Nations, that is a State for the purposes of international law, or a state in the international meaning of that term.This does not mean however that territorial units forming a part of a federal state cannot conclude international agreements. But, this issue depends both on the provisions of internal law of the given state and on the practice of the states recognising the potential rights of the components of the federal (non-unitary) states in respect to conclusion of the treaties.

Role of the Sixth Committee and International Law Commission in International Law-Making

SSRN Electronic Journal ◽

10.2139/ssrn.3823145 ◽

2021 ◽

Author(s):

Nilesh Chopra

Keyword(s):

International Law ◽

Law Making ◽

The Case for a Convention on State Responsibility

Nordic Journal of International Law ◽

10.1163/15718107-08304003 ◽

2014 ◽

Vol 83 (4) ◽

pp. 439-475 ◽

Cited By ~ 1

Author(s):

Laurence T. Pacht

Keyword(s):

United Nations ◽

International Law ◽

Public Space ◽

General Assembly ◽

State Responsibility ◽

Main Argument ◽

The Public ◽

Law Commission ◽

Do So

At the time of adopting the Articles on the Responsibility of States for Internationally Wrongful Acts, in 2001, the International Law Commission recommended, inter alia, that the General Assembly of the United Nations consider the possibility of negotiating a convention on the basis of the Articles. On four occasions, since 2001, the member states in the Sixth Committee of the General Assembly have been divided on whether to do so. Nonetheless, the most recent such debate, held in 2013, revealed a strong undercurrent of support among the states for convening a diplomatic conference to negotiate a treaty. However, this trend is not reflected in much of what has been written and argued in the public space, which has been almost entirely in opposition to a convention. The main argument for such opposition has been that a treaty negotiation would set back the development of the law either through the adoption of a flawed text or through failure to reach agreement. The present article seeks to scrutinise the viability of such a prognosis, by both responding to the arguments made against a treaty negotiation and by offering some reasons for supporting the negotiation of a convention on the responsibility of states for internationally wrongful acts.