scholarly journals Legal instability in cyberspace and OSCE’s mitigation role

2021 ◽  
Vol 11 (3) ◽  
Author(s):  
Adina PONTA
Keyword(s):  
Human Rights ◽  
International Law ◽  
Lessons Learned ◽  
Due Diligence ◽  
Conflict Prevention ◽  
Open Questions ◽  
The Creation ◽  
Key Steps

After the international legal community widely endorsed the application of international law to cyberspace, many open questions remain on the concrete interpretation of existing rights and obligations to the cyber realm. In pursuit of its mandate to promote human rights and conflict prevention, the OSCE can play a major role to support operationalization of international law and application of existing principles to cyberspace. This paper examines some key steps in the aftermath of the creation of norms of behavior, and transparency and confidence-building measures. After a brief analysis of the normcreation process, this piece identifies several pressing cybersecurity challenges on the international landscape, and offers suggestions for consolidating the voluntary non-binding norms States agreed upon. Using lessons learned from other domains, the analysis will focus on mechanisms of building further stability and transparency in cyberspace, in particular by reference to the due diligence principle and States’ human rights obligations.

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.

scholarly journals Attribution of cyber operations: an international law perspective on the Park Jin Hyok case

2020 ◽  
Vol 9 (1) ◽  
pp. 51-75
Author(s):  
Tomohiro Mikanagi ◽  
Kubo Mačák
Keyword(s):  
International Law ◽  
Alternative Pathway ◽  
The United States ◽  
Lessons Learned ◽  
Due Diligence ◽  
Standard Of Proof ◽  
Probative Value ◽  
High Profile ◽  
International Responsibility ◽  
Key Aspects

States are increasingly willing to publicly attribute hostile cyber operations to other States. Sooner or later, such claims will be tested before an international tribunal against the applicable international law. When that happens, clear guidance will be needed on the methodological, procedural and substantive aspects of attribution of cyber operations from the perspective of international law. This article examines a recent high-profile case brought by the United States authorities against Mr Park Jin Hyok, an alleged North Korean hacker, to provide such analysis. The article begins by introducing the case against Mr Park and the key aspects of the evidence adduced against him. It then considers whether the publicly available evidence, assuming its accuracy, would in principle suffice to attribute the alleged conduct to North Korea. In the next step, this evidence is analysed from the perspective of the international jurisprudence on the standard of proof and on the probative value of indirect or circumstantial evidence. This analysis reveals the need for objective impartial assessment of the available evidence and the article thus continues by considering possible international attribution mechanisms. Before concluding, the article considers whether the principle of due diligence may provide an alternative pathway to international responsibility, thus mitigating the deficiencies of the existing attribution law. The final section then highlights the overarching lessons learned from the Park case for the attribution of cyber operations under international law, focusing particularly on States' potential to make cyberspace a more stable and secure domain through the interpretation and development of the law in this area.

Due Diligence, the UN, and Peacekeeping

2020 ◽  
pp. 217-233
Author(s):  
Nigel D. White
Keyword(s):  
Human Rights ◽  
International Law ◽  
Due Diligence ◽  
Human Rights Law ◽  
Peacekeeping Operations ◽  
Un Peacekeeping ◽  
Meaning And Purpose ◽  
Human Rights Due Diligence

This chapter focuses on the application, acceptance, and implementation of human rights due diligence obligations in UN peacekeeping operations. It points to growing, but uneven, evidence of the development of standards and measures by the UN that would fit the meaning and purpose of due diligence, although there are very few instances of due diligence being used as a term within the UN. The chapter argues that due diligence obligations are applicable either through customary human rights law, or the internal law of the UN, or both due to the fact that the UN’s principles of peacekeeping are themselves based on general principles of international law. The chapter stresses that the UN should have due diligence obligations especially as there is a gap between the commissioning of peacekeeping operations by the UN and the day-to-day control of peacekeepers by the UN.

From Complicity to Due Diligence: When Do States Incur Responsibility for Their Involvement in Serious International Wrongdoing?

2018 ◽  
Vol 60 (1) ◽  
pp. 667-707
Author(s):  
Anja Seibert-Fohr
Keyword(s):  
Human Rights ◽  
International Law ◽  
Third Party ◽  
International Humanitarian Law ◽  
Due Diligence ◽  
Humanitarian Law ◽  
Legal Norms ◽  
State Involvement ◽  
Ex Ante ◽  
Positive Knowledge

The article considers different modes of State involvement in serious violations of international law and the legal criteria for unlawful contributions. Giving special attention to participation below the level of complicity – when a State contributes to serious violations without possessing positive knowledge – the author considers primary rules of international law that prohibit indirect participation, such as the duty to respect and ensure fundamental human rights. The article argues in favour of a risk-based ex ante responsibility in order to prevent cooperation between States which violate fundamental legal norms of the international community. Accordingly, States incur responsibility for indirect participation if they do not exercise the necessary diligence to prevent such violations. Though due diligence is usually referred to when States fail to intervene in cases of third party abuse, it applies a fortiori in cases of active contributions. While the article concentrates on serious human rights violations, it also refers to other fields of international law, including breaches of international humanitarian law. By specifying the legal parameters of due diligence as a general principle it thus contributes to the scholarly debate on the content of due diligence in international law more generally.

scholarly journals Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights

2021 ◽  
Author(s):  
Medes Malaihollo
Keyword(s):  
Human Rights ◽  
International Law ◽  
Environmental Law ◽  
Legal Rights ◽  
International Human Rights Law ◽  
Due Diligence ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Environmental Law ◽  
International Human

AbstractDue diligence is a frequently employed notion in international law, yet much is still to be explored about this concept. This article aims to contribute to an understanding of due diligence obligations in international law, which is useful as it can form the basis for a further clarification of corresponding legal rights of subjects of international law. With this purpose in mind, this article initiates the construction of a working model of due diligence in international law by exploring this notion from two perspectives: an accountability perspective and a regulatory perspective. Subsequently, this article will use this model to compare the operation of due diligence obligations in two branches of international law: international environmental law and international human rights law. In doing so, it will become clear that due diligence contains two core elements: ‘reasonableness’ and ‘good faith’. Moreover, it will become apparent that the operation of due diligence obligations in these two branches has implications for systemic issues in international law. Further research on the operation of due diligence obligations in other branches of international law is therefore recommended.

Implementing the New UN Corporate Human Rights Framework: Implications for Corporate Law, Governance, and Regulation

2012 ◽  
Vol 22 (1) ◽  
pp. 145-177 ◽  
Author(s):  
Peter Muchlinski
Keyword(s):  
Human Rights ◽  
International Law ◽  
Corporate Responsibility ◽  
Tort Law ◽  
Corporate Law ◽  
Due Diligence ◽  
Corporate Managers ◽  
Rights Issues ◽  
Oriented Approach ◽  
Human Rights Due Diligence

ABSTRACT:The UN Framework on Human Rights and Business comprises the State’s duty to protect human rights, the corporate responsibility to respect human rights, and the duty to remedy abuses. This paper focuses on the corporate responsibility to respect. It considers how to overcome obstacles, arising out of national and international law, to the development of a legally binding corporate duty to respect human rights. It is argued that the notion of human rights due diligence will lead to the creation of binding legal duties and that principles of corporate and tort law can be adapted to this end. Furthermore, recent legal developments accept an “enlightened shareholder value” approach allowing corporate managers to consider human rights issues when making decisions. The responsibility to respect involves adaptation of shareholder based corporate governance towards a more stakeholder oriented approach and could lead to the development of a new, stakeholder based, corporate model.

Towards a Humanized International “Constitution”?

2016 ◽  
Vol 29 (2) ◽  
pp. 343-364 ◽  
Author(s):  
VASSILIS P. TZEVELEKOS ◽  
LUCAS LIXINSKI
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Pluralism ◽  
Due Diligence ◽  
Human Rights Law ◽  
Important Ingredient ◽  
Public International Law ◽  
Common Interests ◽  
Jus Cogens ◽  
Positive Effect

AbstractThe article argues that, by bringing a number of changes of systemic proportions in the order of international law, the internationalization of national constitutional human rights law has led to the ‘constitutionalization’ of international law. To build that argument, the paper first critically assesses the constitutionalization narrative. To that end it explains the reasons for its agnostic stance vis-à-vis the constitutionalization narrative and highlights the fact that international law has always contained some general, “constitutional” features that are particular to its systemic physiognomy. The article then explains how human rights law, as a special branch of international law, expands beyond the so-called humanization of international law narrative, acting as an important ingredient in a number of other narratives such as the constitutionalization of international law and the ones that are comparable to it, like legal pluralism and fragmentation. As to the systemic changes the internationalization of human rights has brought to the order of public international law, the examples given are those of collective enforcement at the decentralized level for the protection of common interests/values, sui generis normative hierarchy beyondjus cogensand the idea of the responsibility of states to act in a protective manner linked with the principle of due diligence and the so-called positive effect that human rights develop.

The International Law of Peace

2021 ◽  
pp. 58-76
Author(s):  
Cecilia M. Bailliet
Keyword(s):  
Human Rights ◽  
International Law ◽  
Human Security ◽  
Responsibility To Protect ◽  
Conflict Prevention ◽  
Peaceful Coexistence ◽  
Jus Post Bellum ◽  
Wide Range ◽  
Peace Treaties

Contemporary international law is in a state of flux based on shifts within the geopolitical order. This chapter discusses the normative evolution of the concept of peace international law from peaceful coexistence to the current identification of a right to peace and discusses the interface with the Responsibility to Protect doctrine. It discusses a wide range of dilemmas presented by peace treaties, Jus Post Bellum, and the interface between the umbrella terms of Human Security, Security, and Peace. The chapter suggests that these normative iterations represent a watershed in human rights and international law as non-Western approaches to conflict prevention gain traction.

scholarly journals Conventionality Control the New Doctrine of the Inter-American Court of Human Rights

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 93-99 ◽  
Author(s):  
Eduardo Ferrer Mac-Gregor
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
The Creation

One of the most recent and most effective efforts of the Inter-American Court of Human Rights (Inter-American Court) to increase the level of compliance with the American Convention on Human Rights (ACHR) has been the creation of the “conventionality control” doctrine. The Inter-American Court describes this as a “mechanism for the application of International Law,” mainly “International Human Rights Law, and specifically the American Convention and its sources, including this Court’s jurisprudence.”

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