Due Regard and Due Diligence

2021 ◽  
pp. 89-132
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Legitimate Authority ◽  
Due Diligence ◽  
International Courts ◽  
Legal Obligations ◽  
Regulatory Standards ◽  
Rights And Interests

Chapter Four examines the practice in the same international courts as Chapter Three, this time focusing on ‘due regard’ and ‘due diligence’. These emerging regulatory standards require that States have due regard for one another’s rights and interests, and that States exercise due diligence in the control of activity that may cause transboundary harm. As in Chapter Three, the standards seen in these cases are often accommodating of domestic authority. Due diligence, particularly, significantly accommodates domestic authority. International legal obligations for States to control private conduct and prevent transboundary harm are understood only as obligations of conduct or limited due diligence obligations. This tends to leave international law less equipped to mandate the action from States that will better fulfil States’ combined substantive needs. The emerging global regulatory standards thus appear to do too little to enhance traditional substantive justifications for international law’s claim to legitimate authority.

Regulatory Standards, Legitimate Authority and the Adjudicatory Role

2021 ◽  
pp. 279-304
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Regulatory Action ◽  
Legitimate Authority ◽  
Political Involvement ◽  
International Courts ◽  
Regulatory Standards

Part V contains two chapters, Chapter Nine and Chapter Ten. These chapters return to the conceptual questions raised by the emergence of global regulatory standards in international courts and tribunals. Chapter Nine evaluates overall how the standards preserve, enhance or undermine international law’s claim to legitimate authority. Broadly, the standards appear to strengthen traditional procedural justifications of authority. However, substantively they contribute only partially to an ideal balancing of international interests and do not promise the co-ordination between domestic and international legal orders needed for international law better to serve its subjects by better balancing competing global interests. More is not to be expected, though. International courts and tribunals remain formally and socially constrained; inter alia the parties’ pleadings are often influential. Greater international political involvement in the development of global regulatory standards would be appropriate, especially in relation to the possible future adoption of regulatory coherence tests that might require proportionality in regulatory action.

Introducing Regulatory Standards

2021 ◽  
pp. 19-48
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Legal Order ◽  
Legitimate Authority ◽  
Due Diligence ◽  
Regulatory Standards ◽  
The Future ◽  
Regulatory Measures

The three global regulatory standards seen in the disputes studied in this book comprise: a regulatory coherence standard calling for certain relationships between regulatory measures and their purposes, a standard requiring that a regulating State has demonstrated due regard for the interests of other States, and a standard requiring the exercise of due diligence in the exercise of States’ obligations to prevent transboundary harm. These three core regulatory standards consistently characterise the environmental and health disputes in this book, and they appear to be gaining status as global regulatory standards for the future. The appearance of regulatory standards is best understood as an aspect of the functioning of the plural world legal order rather than as a constitutionalisation of this order in a stronger sense. Theories of legitimate authority in plural legal orders cast valuable light on the legitimacy of the emerging standards-enriched international law.

The Development of International Law of the Sea by International Courts and Tribunals

2021 ◽  
Vol 9 (1) ◽  
pp. 132-152
Author(s):  
Hua Zhang
Keyword(s):  
International Law ◽  
Normal Function ◽  
Law Of The Sea ◽  
Due Diligence ◽  
International Courts ◽  
Marine Environmental Protection ◽  
Administration Of Justice ◽  
International Adjudication ◽  
Marine Environmental ◽  
Law Making

Abstract The development of international law of the sea by international courts and tribunals is generally acknowledged among international lawyers. In retrospect, the creative jurisprudence of international judicial bodies was incorporated into the mainstream of international law-making process in many cases, while the experience of failure cannot be ignored. In the past decade, the strengthening of marine environmental protection has become a tendency in international adjudication. Accordingly, the content and scope of due diligence obligation has been discovered, consolidated and extended. In light of the evolution of due diligence obligation, the methodology of law-making by international judicial bodies includes: inter alia, interpretation, cross-reference of precedents, analogy, and assertion. However, from the perspective of legitimacy, law-making should not become the normal function of international judicial bodies. Bearing in mind international rule of law and good administration of justice, the lawmaking activities of international courts and tribunals should be curtailed in certain degree.

Individual Rights in Disputes between States

2021 ◽  
Vol 29 (3) ◽  
pp. 433-449
Author(s):  
Ben Juratowitch ◽  
Natasha McNamara
Keyword(s):  
International Law ◽  
Individual Rights ◽  
International Courts ◽  
Rights And Interests

This article is concerned with ways in which international courts and tribunals take into account the rights and interests of individuals when they are affected by a dispute between states concerning the direct rights and obligations of those states under international law.

Diligentia quam in suis as a Technique for a Contextual Application of the Full Protection and Security Standard: Considering the Level of Development of Host States in International Investment Law

2020 ◽  
Vol 28 (4) ◽  
pp. 596-611
Author(s):  
Nitish Monebhurrun
Keyword(s):  
International Law ◽  
International Investment ◽  
Due Diligence ◽  
Foreign Investors ◽  
International Investment Law ◽  
Local Means ◽  
Security Standard ◽  
Maximum Protection ◽  
Investment Law ◽  
Full Protection

With international investment law as the background to this study, the present article examines how the full protection and security standard can be construed from the perspective of developing states hosting foreign investments. The research delves into classical public international law to argue that the diligentia quam in suis rule can be used as a means of interpretation to strike a balance between foreign investors’ and developing states’ interests when construing the full protection and security standard. The rule provides that any expected due diligence from the state party is necessarily of a subjective nature. This means that developing host states must deploy their best efforts to offer maximum protection to foreign investors not on an in abstracto basis but as per their local means and capacity. Accordingly, the standard is presented as an adaptable and flexible one which moulds its contours as per the level of development of the host state. Such flexibility does not imply condoning states’ abuse and negligence. The article explains how the diligentia quam in suis rule enables a conciliation between the full protection and security standard and the host state's level of development while rationalising the standard's application to developing nations.

The New Terrain of International Law

2014 ◽  
Author(s):  
Karen J. Alter
Keyword(s):  
International Law ◽  
Case Studies ◽  
Domestic Politics ◽  
Political Influence ◽  
The Political ◽  
International Courts ◽  
Constitutional Review ◽  
Delegation Of Authority ◽  
The World ◽  
The Law

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. This book charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics. The book presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, the book argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. The book explains how this limited power—the power to speak the law—translates into political influence, and it considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

Can Multinational Corporations be responsible for human rights violation of its outsourcee company? Response of national or international law?

2020 ◽  
Vol 20 (1) ◽  
pp. 153-179
Author(s):  
Alessandro Suppa ◽  
Pavel Bureš
Keyword(s):  
Human Rights ◽  
International Law ◽  
Multinational Corporations ◽  
Corporate Law ◽  
International Economy ◽  
Due Diligence ◽  
Business And Human Rights ◽  
Original Question ◽  
Definition Of ◽  
Human Rights Violation

SummaryNowadays, an important role in the world is played by Multinational Corporations (MNCs). They hire, produce, and influence the international economy, but also, they exploit, pollute. Their business activities might have a worldwide effect on human lives. The question of the responsibility of MNCs has drawn the attention of many scholars, mainly from the study field labelled “Business and Human Rights”. The present paper does not examine the topic under the same approach. The authors aim at presenting the issue in a broader perspective, exploring the concept of due diligence both in international and corporate law. In this paper, authors strategically use the uniformity of national legislations as a possible and alternative solution to the issue. They are aware of three fundamental factors: 1) the definition of MNCs needs to be as clear as possible, so to avoid any degree of uncertainty; 2) the outsourcing phenomenon interacts with that definition; 3) in case of no possibility to include outsourcing in the definition of MNC, the original question arises in a significant way.

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