The Function of the Triad ‘Territory’, ‘Jurisdiction’, and ‘Control’ in Due Diligence Obligations

2020 ◽  
pp. 75-91
Author(s):  
Federica Violi
Keyword(s):  
International Law ◽  
The State ◽  
Due Diligence ◽  
Precise Identification ◽  
And Function ◽  
Private Actors ◽  
And Control ◽  
Power And Authority

This chapter analyses the notions ‘territoryʼ, ‘jurisdictionʼ, and ‘controlʼ and their influence on the scope of due diligence obligations. It demonstrates that these notions epitomise the link between the state charged with the obligation and the risk itself and argues that the precise identification of this link is essential to understand how due diligence obligations arise and function. The chapter traces the gradual ‘widening’ of the scope of due diligence in international law, through court and arbitral decisions, treaties and non-binding instruments. It reflects on whether current international law is able to move away from the territoriality principle and conceive other forms of organising power and authority, and whether due diligence obligations might also be borne by private actors.

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.

ADMINISTRATIVE REGULATIONS OF STATE FUNCTIONS AT THE PRESENT STAGE: DYNAMICS OF CHANGES IN THE APPROACH TO THE CONCEPT AND VARIETIES AT THE LEGAL REGULATORY

2021 ◽  
Vol 14 (6) ◽  
pp. 137-141
Author(s):  
ROMAN ZELEPUKIN ◽  
Keyword(s):  
Public Administration ◽  
Administrative Reform ◽  
The State ◽  
Present Stage ◽  
Logical Connection ◽  
Administrative Procedures ◽  
Continuous Activities ◽  
And Function ◽  
And Control ◽  
State Functions

In this article the author analyses the development of administrative regulations in the system of modern public administration. The state of administrative regulations and their institutionalisation as a result of the administrative reform is noted. It has been identified and found that there has now been a change in the approach to the delineation of the administrative regulations of the executive authorities - before 2018, administrative regulations were divided into service regulations and function regulations, where service regulations are related to requests by private persons to the state represented by its bodies and officials - and function regulations are related to the implementation of continuous activities to perform assigned powers and exercise the established competence, after 2018, administrative regulations are divided into service regulations and control (supervision) regulations. According to the author, the established approach has allowed the above varieties of regulations to be merged into such a group of types of administrative regulations as administrative regulations for the implementation of state functions. Also the author concludes that it is necessary to adopt a special legislative act systemising the functions of the executive authorities and the administrative procedures they carry out in a single logical connection.

Member States’ Due Diligence Obligations to Supervise International Organisations

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 ◽  
International Law Commission ◽  
Law Commission

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.

Part V Subject Matter, Ch.29 Climate Change

2021 ◽  
Author(s):  
Rajamani Lavanya ◽  
Werksman Jacob D
Keyword(s):  
Climate Change ◽  
International Law ◽  
Environmental Law ◽  
Paris Agreement ◽  
Due Diligence ◽  
Address Climate Change ◽  
Rules And Principles ◽  
Harm Prevention ◽  
And Function ◽  
The Universe

This chapter provides an overview of international regulatory efforts to address climate change. It focuses on the UN climate change regime, which comprises the 1992 UNFCCC (United Nations Framework Convention on Climate Change), the Kyoto Protocol, the Paris Agreement, and decisions of parties under these instruments. However, the universe of climate change law extends well beyond the UN climate change regime. There are rules and principles of general international law, such as the harm prevention principle, due diligence, and state responsibility, which apply to climate change. There are treaty regimes and institutions, including those addressing other areas of international environmental law or other fields of international law, which intersect with, complement, and function to implement the UN climate change regime. There are also a multiplicity of rules, regulations, and institutions at the regional, sub-regional, and national levels that directly or indirectly address climate change, many of which have been put in place in response to the UN treaties.

scholarly journals Introductory Remarks by Hélène Tigroudja

2018 ◽  
Vol 112 ◽  
pp. 27-28
Author(s):  
Hélène Tigroudja
Keyword(s):  
International Law ◽  
International Society ◽  
The State ◽  
International Organization ◽  
Good Morning ◽  
Private Actors

Good morning, everybody, and welcome to this extraordinary panel on the operationalization of international law, beyond the state, so it is a very ambitious title and it is a very ambitious question, and we are trying to discuss a bit more about the private actors and the role and the place of the private actors in international society, but not only private actors as such but private actors in their relationship with other classical subjects of international law of states across an international organization.

scholarly journals Due Diligence in the International Legal Order

2020 ◽  
Keyword(s):  
International Law ◽  
Environmental Law ◽  
Legal Order ◽  
Due Diligence ◽  
Present Book ◽  
International Economic Law ◽  
International Legal Order ◽  
Rules And Principles ◽  
And Function ◽  
Diverse Interactions

Due diligence is a prominent concept in international law. Still, for long, its role seemed to be that of a familiar stranger. Frequent referrals to the concept in arbitral awards, court decisions, and in scholarly discussions mostly on state responsibility hide the fact that the specific normative content and systemic relation of due diligence to rules and principles of international law has largely remained unexplored. The present book provides the first comprehensive analysis of the content, scope, and function of due diligence across various areas of international law, including international environmental law, international peace and security law, and international economic law. Sector by sector, contributors explore the diverse interactions between due diligence and area-specific substantive and procedural rules as well as general principles of international law. The book exposes the promises and limits of due diligence for enhancing accountability and compliance and identifies the rise of due diligence as a signal for change in the international legal order towards risk management and proceduralisation.

Deconstructing the Conflict in Ukraine: The Relevance of International Law to Hybrid States and Wars

2015 ◽  
Vol 16 (3) ◽  
pp. 452-478 ◽  
Author(s):  
Outi Korhonen
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
State Level ◽  
Current Situation ◽  
The State ◽  
Public And Private ◽  
The Rule Of Law ◽  
Economic Control ◽  
Before And After ◽  
Private Actors

In Ukraine, spheres of political, military, and economic control are contested, non-transparent, and shifting. As the Ukrainian government lost control over the rebellious Eastern oblasts (regions) of the country, Russia denies its authority over various pro-Russian separatists and vigorously rejects any responsibility for the abuses by the unidentified “green men,” both before and after the annexation of Crimea. Even during the decades before this conflict, the rule of law in Ukraine was “thin” at best. Meaningful political control was sporadic and dispersed, often wielded by the mix of public, private, and other shady actors occupying the grey area between a functional and a dysfunctional state. If state actors never effectively took control over the events at the state-level during peaceful times, it is not surprising that it is more difficult once a “hot” conflict breaks out. It is not unreasonable to assume that Minsk agreements—signed in an effort to stop the hemorrhaging of the conflict—will not hold if the signatories do not effectively control the diverse public and private actors who possess the actual capacity to influence the dynamic on the ground. Before rendering any kind of juridical judgment, the complicated political and socioeconomic configuration of the conflict in Ukraine forces us to first confront a factual puzzle: Who and what influence the current situation? Which concrete actors really drive the conflict and what interests animate them?

scholarly journals The State Duty to Protect against Human Rights Violations through Transnational Business Activities

2018 ◽  
Vol 23 ◽  
pp. 13-40 ◽  
Author(s):  
Markus Krajewski
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Human Rights Violations ◽  
Due Diligence ◽  
Environmental Laws ◽  
Human Rights Abuses ◽  
State Practice ◽  
Duty To Protect ◽  
Respective State

Transnational corporations are currently not formally bound by international human rights obligations. Instead, states have a duty to protect individuals against human rights abuses by third parties, including corporations. While it is undisputed that this obligation extends to all individuals living on the territory of the respective state, the extraterritorial scope of the duty to protect remains contested. This is especially the case for human rights violations through transnational business activities. The state on whose territory the violation occurs has a duty to protect human rights by adopting and implementing labour and environmental laws applicable in that state. However, it is less clear if and to what extent the state of the main seat of the mother company or the global ordering company — the ‘home state’ — also has a human rights duty to regulate transnational business activity. This article argues that such a duty can be based on existing human rights doctrine and standards of general international law such as the ‘no harm’ rule and the due diligence principle. It argues that states have a duty to regulate transnational business activities of corporations over which they exercise jurisdiction if human rights violations caused by such activities are predictable and preventable. In its final part, the article assesses various approaches in state practice which could be seen as instruments in the fulfilment of the duty to regulate transnational business activities.

Navigating Migrant Trajectories through Private Actors

2018 ◽  
Vol 17 (1) ◽  
pp. 55-82 ◽  
Author(s):  
Anja K. Franck ◽  
Emanuelle Brandström Arellano ◽  
Joseph Trawicki Anderson
Keyword(s):  
International Migration ◽  
The State ◽  
Migration Process ◽  
Migrant Community ◽  
Private Actors ◽  
And Control ◽  
George Town ◽  
The City ◽  
Migration Industry

Abstract Recent research on the ‘migration industry’ has provided a means to interrogate how private actors come to be used as a means to facilitate, direct and control migration. Both through incorporating private actors into security functions and outsourcing certain functions to labour brokers, the use of migration industry actors is an important part of the ways in which the state works to maintain its sovereign control over territory and the ways people move across it. Yet this is not the only way in which migration industry actors are used. Instead, private actors also play a key role for migrants, although attention towards how migrants themselves perceive and use these actors during the migration process has received far less attention. Using timelines of migrant trajectories from Burma/Myanmar to Malaysia, the following study therefore sets out to map the private actors involved in the migrants’ projects to travel to and stay in Malaysia—and to investigate how these actors are strategically used by migrants as a means to increase their room to manoeuvre during the migration process. In approaching this, the study combines literature on the privatisation and commercialisation of international migration with scholarship on migration trajectories and migrant agency. Empirically the study builds upon fieldwork conducted in the Burmese migrant community in the city of George Town in northern Malaysia.

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