Due Diligence and Structural Change in the International Legal Order

Legal Subjects ◽

This chapter first analyses the legal functions of due diligence, notably risk-management and securing accountability, defining audits and impact assessments, or operationalising obligations of progressive realisation. The chapter interprets the rise of due diligence as a response to, a manifestation of, and a catalyst for structural change in international law. These changes include proceduralisation, pluralisation of legal subjects, de-constitutionalisation, and more proactive risk management. The chapter traces understandings of due diligence throughout the different areas of international law and across different types of legal persons. It concludes that due diligence has quite diverse meanings and functions depending on the legal context, and can therefore hardly be qualified as an overarching principle of international law. While due diligence shapes the international law of a global risk society and helps to secure accountability, it also menaces to mellow firm obligations and thus bears the risk to undermine the international rule of law.

Due diligence: the risky risk management tool in international law

Cambridge International Law Journal ◽

10.4337/cilj.2020.02.01 ◽

2020 ◽

Vol 9 (2) ◽

pp. 121-136

Author(s):

Anne Peters ◽

Heike Krieger ◽

Leonhard Kreuzer

Keyword(s):

Risk Management ◽

International Law ◽

Structural Changes ◽

Legal Order ◽

Institutional Capacity ◽

Management Tool ◽

Due Diligence ◽

State Accountability ◽

Bridging Law

As a standard bridging law and other spheres of normativity, due diligence is pervasive across numerous areas of international law. This paper defines the features and functions of due diligence, illustrating how the concept's development reflects structural changes in the international legal order. Concerning their content, due diligence obligations can be separated into two overlapping types: procedural obligations and obligations relating to States' institutional capacity. Thus, due diligence serves to manage risks, compensate for States' freedoms being circumscribed through legalisation, expand State accountability and possibly stabilise the international order through ‘proceduralisation’. However, it is argued that due diligence cannot be characterised as a general principle of international law due to its diverse content in different fields of international law and its dependence on accompanying primary rules. Finally, it is contended that due diligence introduces certain risks, particularly by diluting States' substantive obligations and contributing to the rise of ‘informal’ international law.

Private international law in a global risk society

Collected Courses of the Hague Academy of International Law ◽

10.1163/1875-8096_pplrdc_ej.9789041113948.297_426.7 ◽

2017 ◽

Keyword(s):

International Law ◽

Risk Society ◽

Private International Law ◽

Global Risk

Due Diligence in the International Legal Order

Due Diligence in the International Legal Order ◽

10.1093/oso/9780198869900.003.0001 ◽

2020 ◽

pp. 1-20

Author(s):

Anne Peters ◽

Heike Krieger ◽

Leonhard Kreuzer

Keyword(s):

International Law ◽

Analytical Framework ◽

Legal Order ◽

Due Diligence ◽

Legal Texts ◽

Scope Of Application

The introductory chapter sets the scene for this book and establishes an analytical framework for the sector-specific chapters. It traces the etymological roots of the notion of due diligence and discusses its scope of application, normative functions, and contents in various areas of international law. It furthermore highlights recurring issues which the sector-specific contributions of the book address, including the key question from which legal source due diligence obligations can be derived and to what extent these obligations are binding. The introductory chapter also maps the commonplace diligence requirements in international legal texts and briefly outlines the book chapters.

2000–2020: twenty years later, where are we in terms of the unity of international law?

Cambridge International Law Journal ◽

10.4337/cilj.2020.01.01 ◽

2020 ◽

Vol 9 (1) ◽

pp. 6-23

Author(s):

Pierre-Marie Dupuy

Keyword(s):

International Relations ◽

United Nations ◽

International Law ◽

Rule Of Law ◽

Legal Order ◽

Public International Law ◽

The Hague ◽

Peremptory Norms ◽

Twenty years have passed since the author's delivery in 2000 of the general course of public international law at the Hague Academy of International Law, titled ‘The Unity of the International Legal Order’. That course was designed to combat the all-too-common idea that international law was in the process of ‘fragmentation’. It did so by developing a theory focused on the existence of and tension between two forms of unity in the international legal order: the formal unity (concerning the procedures by which primary norms are created and interpreted, and their non-compliance adjudicated) and the material unity (based on the content of certain norms of general international law, peremptory norms). Twenty years later, the time is ripe to revisit this theory to determine the extent to which it is still valid as a framework for the analysis of international law, particularly as an increasing number of ‘populist’ leaders very much seem to ignore, or voluntarily deny, the validity of some of the key substantial principles on which the international legal order was re-founded within and around the United Nations in 1945. When confronted with the factual reality of the present state of international relations as well as with the evolution of the law, one can conclude that the validity of the unity of the international legal order is unfailingly maintained, and that its role in upholding the international rule of law is more important now than ever.

A Keen Observer of the International Rule of Law? International Law in China's Voting Behaviour and Argumentation in the United Nations Security Council

Leiden Journal of International Law ◽

10.1017/s0922156513000459 ◽

2013 ◽

Vol 26 (4) ◽

pp. 875-907 ◽

Cited By ~ 1

Author(s):

PHIL C. W. CHAN

Keyword(s):

United Nations ◽

International Law ◽

Rule Of Law ◽

Security Council ◽

United Nations Security Council ◽

Voting Behaviour ◽

The United Nations ◽

International Rule ◽

Keen Observer

AbstractGiven the centrality of law in the creation, decision-making, and impact of the United Nations Security Council, the deliberative discourses among Security Council Members, and the necessity for China to articulate its reasons publicly for its actions within the Security Council, the roles that China plays within the Security Council illuminate and clarify its approaches to the current international legal order. This article explains how law serves as a constitutional–normative framework within which the Security Council must function, followed by a discussion of how the Security Council in turn may serve as a locus of deliberative discourses that delineate, influence, and constrain its members’ state behaviours. It challenges the view that law plays a limited role on matters of international security by exploring China's voting behaviour in the Security Council and the arguments that it has proffered. It also discusses how China may respond to a draft Security Council resolution aimed at its conduct other than simply by vetoing it, and how it has taken a proactive role in the maintenance of international peace and security through the Security Council.

Defining Sovereign Assets for Immunity from Execution: International Rule of Law Versus International Law - Based Rule of Law

Eudaimonia ◽

10.51204/ivrs_21107a ◽

2021 ◽

pp. 165-179

Author(s):

Ferdous Rahman

Keyword(s):

International Law ◽

Rule Of Law ◽

Legal Order ◽

Sovereign Immunity ◽

Uniform Definition ◽

Model Law ◽

Definition Of ◽

International Conventions ◽

Sovereign assets receive restrictive sovereign immunity based on their purpose and/or use for execution of States’ commercial liabilities. The forum States’ courts decide the question of immunity of these assets. Due to lack of effective international conventions, these judgements result at inconsistent outcomes. Rule of law can be applied to mitigate this inconsistency. However, the objectives of rule of law vary for the national and the international legal order. Moreover, the divergence in group-interests of States and mandate of international organizations have failed to agree on a uniform definition of international rule of law. Thereby, this paper suggests international law-based rule of law as an alternative approach. International law-based rule of law aims at achieving the same objectives as domestic legal order, but, by the tools of international laws. Finally, it proposes to develop an inter-States consensus-based model law to have uniform principles of sovereign assets’ immunity in international law.

International and Supranational Law

Law for Computer Scientists and Other Folk ◽

10.1093/oso/9780198860877.003.0004 ◽

2020 ◽

pp. 75-96

Author(s):

Mireille Hildebrandt

Keyword(s):

International Law ◽

Constitutive Relationship ◽

The European Union ◽

International Treaties ◽

Legal Effect ◽

The Relationship ◽

Special Case ◽

This chapter turns to international and supranational law. It focuses on international law in the context of the Council of Europe (CoE) and on supranational law in the context of the European Union (EU). The chapter first discusses the concept of jurisdiction and its formative status in national, international, and supranational law, after which it provides a more in-depth overview of international law and supranational law. This involves a discussion of the relationship between national constitutions and the binding force of international treaties, the role of consent and custom in the force of international law, and the legal effect of fundamental principles and mandatory law that no state can ignore. Next, the special case of the supranational EU jurisdiction is introduced, notably the distribution of sovereignty between the member states and the Union and the most important legislative instruments: regulations and directives. Finally, the mutually constitutive relationship between internal and external sovereignty is connected with the idea of an international rule of law that addresses states as fiduciary agents of the international legal order.

Due Diligence in the International Legal Order

10.1093/oso/9780198869900.001.0001 ◽

2020 ◽

Keyword(s):

International Law ◽

Environmental Law ◽

Legal Order ◽

Due Diligence ◽

Present Book ◽

International Economic Law ◽

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.

International Law and International Justice

The Oxford Handbook of International Political Theory ◽

10.1093/oxfordhb/9780198746928.013.9 ◽

2018 ◽

pp. 142-152

Author(s):

Hilary Charlesworth

Keyword(s):

International Law ◽

International Criminal ◽

International Economic Order ◽

Legal Order ◽

International Justice ◽

International Criminal Law ◽

International Adjudication ◽

The Relationship ◽

This chapter investigates the relationship between the concepts of international justice and international law. It suggests that the idea of an international rule of law is constructed on procedural, rather than substantive, accounts of justice. Against the background of two opposing tendencies in the international legal order that influence ideas of international justice, namely the Westphalian and UN Charter accounts, the chapter considers various attempts to incorporate notions of justice in the international legal order. Examples are drawn from the 1970s campaign for a New International Economic Order at the UN, from international adjudication, from feminist campaigns, and from the work of international legal scholars such as Thomas Franck and Steven Ratner. The chapter argues that the concept of international justice has become associated largely with international criminal law, and indicates the limitations of this linkage.

Landscape and International Law

10.1093/oso/9780198826248.003.0003 ◽

2018 ◽

Author(s):

Amy Strecker

Keyword(s):

Cultural Heritage ◽

International Law ◽

Paradigm Shift ◽

Legal Order ◽

Future Generations ◽

Normative Development ◽

The Third ◽

Legal Context ◽

Landscape Protection

Chapter 3 sets out the contemporary international legal context, as well as the rationale, for landscape protection in international law. In particular, it draws three distinct lines of normative development in international law relevant for landscape protection. The first links the principles of common heritage, common concern, and common goods; the second discusses the cultural heritage of humankind, and the third focuses on environmental protection and sustainable development. It is argued that the international legal order as traditionally conceived has undergone substantial changes in recent years and that these developments alter the traditional notion of sovereignty: states now have an obligation to safeguard the environment and elements of the cultural heritage for the benefit of humankind, including future generations. This chapter argues that any consideration of landscape protection in international law must necessarily consider this paradigm shift.