An Inquiry into the Role of Commissions of Inquiry in International Law: Navigating the Tensions between Fact-Finding and Application of International Law

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.

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Gaps in Corporate Liability

International Community Law Review ◽

10.1163/18719732-23050005 ◽

2021 ◽

Vol 23 (5) ◽

pp. 486-502

Author(s):

Jelena Aparac

Keyword(s):

Human Rights ◽

International Law ◽

Transitional Justice ◽

Corporate Responsibility ◽

Armed Conflict ◽

Armed Conflicts ◽

Human Rights Council ◽

Commissions Of Inquiry ◽

Fact Finding ◽

Corporate Liability

Abstract Fact-finding is a fundamental step in providing documentation that can be used in domestic and international proceedings. The United Nations establishes commissions of inquiry to investigate international law violations, often in contexts of armed conflict, under the mandate of the Human Rights Council or other more political organs of the UN. They vary in mandate, as well as in investigative and geographic scope. However, to this day, fact-finding mechanisms or inquiry commissions have only rarely conducted investigations into corporate crimes, even in cases where the UN has explicitly recognized the part played by economic actors in armed conflicts. Because corporations are not subjects of international law, they are presumed not to have any direct obligations under international law. Moreover, the mandates of fact-finding missions de facto exclude corporations from investigations because such mandates are always designed to investigate international law violations. By voluntarily dismissing any investigation of corporate crimes, the UN is significantly limiting prospects for corporate responsibility and impeding the process of transitional justice.

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THE ROLE OF DUE DILIGENCE IN INTERNATIONAL LAW

International and Comparative Law Quarterly ◽

10.1017/s0020589319000344 ◽

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.

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Part II The Right to Know, B Commissions of Inquiry, Principle 11 Adequate Resources for Commissions

10.1093/law/9780198743606.003.0015 ◽

2018 ◽

Author(s):

Varney Howard

Keyword(s):

Human Rights ◽

International Law ◽

Theoretical Framework ◽

Historical Background ◽

Right To Know ◽

Political Will ◽

The Right To Know ◽

Commissions Of Inquiry ◽

The Right

Principle 11 guarantees adequate resources in support of a commission of inquiry so that it can comply with its legal mandate without compromising its independence and autonomy. A commission with autonomy means that it has control over its own finances and may make its own decisions in respect of the allocation of its resources. The issue of autonomy is inextricably linked to the independence of a commission. This chapter first provides a contextual and historical background on Principle 11 before discussing its theoretical framework, focusing on international law instruments governing the investigation of human rights violations that oblige state parties to adequately resource the responsible investigative agency. In particular, it considers the role of competent authorities, explicit duty, funding principles, and political will. It also examines how commissions of inquiry have been supported in practice and cautions against proceeding with commissions where adequate support is not guaranteed.

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Reforming the Role of the African Commission on Human and Peoples’ Rights in Advancing Democratic Principles and Human Rights in African Countries: An Examination Using the Lens of Swaziland/ eSwatini

Southern African Public Law ◽

10.25159/2522-6800/3860 ◽

2019 ◽

Vol 34 (2) ◽

Author(s):

Jeremy Sarkin

Keyword(s):

Human Rights ◽

African Countries ◽

Individual Country ◽

The Status ◽

Effective Role ◽

Limited Compliance ◽

Fact Finding ◽

Democratic Principles ◽

African Commission

This article explores the role of the African Commission on Human and Peoples’ Rights and the role it plays regarding human rights in individual country situations in Africa. It specifically examines the extent to which it has been able to advance a human rights agenda in countries with long-standing human rights problems. The article uses Swaziland/ eSwatini as a lens to examine the matter, because of the longstanding problems that exist in that country. This is done to indicate how the institution works over time on a country’s human rights problems. The article examines a range of institutional structural matters to establish how these issues affect the role of the Commission in its work. The article examines the way in which the Commission uses its various tools, including its communications, the state reporting processes, fact-finding visits, and resolutions, to determine whether those tools are being used effectively. The article examines how the Commission’s processes issues also affect it work. Issues examined negatively affecting the Commission are examined, including problems with the status of its resolutions and communications, limited compliance with its outcomes, and inadequate state cooperation. Reforms necessary to enhance to role and functions of the Commission are surveyed to determine how the institution could become more effective. The African Union’s (AU|) Kagame Report on AU reform is briefly reviewed to examine the limited view and focus of AU reform processes and why AU reform ought to focus on enhancing human rights compliance. The article makes various suggestions on necessary institutional reforms but also as far as the African Commission’s procedures and methods of work to allow it to have a far more effective role in the promotion and protection of human rights on the continent. It is noted that political will by the AU and African states is the largest obstacle to giving the Commission the necessary independence, support and assistance that it needs to play the role in Africa that it should.

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