scholarly journals Due diligence: the risky risk management tool in international law

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 ◽  
International Legal Order ◽  
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.

Due Diligence in the International Legal Order

2020 ◽  
pp. 1-20
Author(s):  
Anne Peters ◽  
Heike Krieger ◽  
Leonhard Kreuzer
Keyword(s):  
International Law ◽  
Analytical Framework ◽  
Legal Order ◽  
Due Diligence ◽  
Legal Texts ◽  
International Legal Order ◽  
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.

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.

Due Diligence and Structural Change in the International Legal Order

2020 ◽  
pp. 351-390
Author(s):  
Heike Krieger ◽  
Anne Peters
Keyword(s):  
Risk Management ◽  
Structural Change ◽  
International Law ◽  
Risk Society ◽  
Due Diligence ◽  
Global Risk ◽  
Legal Context ◽  
International Legal Order ◽  
Legal Subjects ◽  
International Rule

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.

China and International Adjudication

2021 ◽  
Author(s):  
Thomas S. Eder
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Case Law ◽  
Comprehensive Analysis ◽  
Legal Order ◽  
Great Power ◽  
Law Of The Sea ◽  
International Legal Order ◽  
International Adjudication

China aims to become a “leader country” in international law that “guides” the international legal order. Delivering the first comprehensive analysis of case law and Chinese academic debates from 2002 to 2018, this book shows that gradually increased engagement with international adjudication is part of a broad effort to consolidate China’s economic and political gains, and regain great power status. It covers trade, investment, territorial and law of the sea matters – including the South China Sea disputes – and delineates a decades-long process between caution and ambition. Both in debate patterns and in actual engagement, this book finds remarkable similarities in all covered fields of law, merely the timetables differ.

scholarly journals Choice and (the Awareness of) its Consequences: The ICJ's “Structural Bias” Strikes Again in the Marshall Islands Case

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 81-87 ◽  
Author(s):  
Andrea Bianchi
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Third Parties ◽  
Legal Order ◽  
Marshall Islands ◽  
Young Researcher ◽  
International Treaty ◽  
Rubber Stamp ◽  
International Legal Order ◽  
State Of Affairs

My very first publication, admittedly written in a language that many AJIL Unbound readers might be unable or unwilling to read, was an essay on the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its effects vis-à-vis third parties. Already back then, I found it difficult to justify how an international treaty could rubber-stamp such a highly uneven state of affairs. The overt acknowledgement of the discrimination between nuclear and nonnuclear states, the hypocrisy about “unofficial” nuclear states, and the Article VI obligation for nuclear states to negotiate effective measures of disarmament, largely ignored in the first twenty years of the treaty, were all elements that contributed to my perception of unfairness, if not blatant injustice. As a young researcher approaching international law with the enthusiasm of the neophyte, however, this looked like a little anomaly in an otherwise fair and equitable international legal order. It did not set off warning bells about the system as such. After all, international law was geared, at least in my eyes, towards enhancing the wellbeing of humanity. It must have been so. And it is not that I leaned particularly on the idealistic side; it seemed normal to me … at the time.

Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory

2014 ◽  
Vol 108 (3) ◽  
pp. 389-434 ◽  
Author(s):  
Pierre-Hugues Verdier ◽  
Erik Voeten
Keyword(s):  
International Law ◽  
Legal Order ◽  
Explanatory Theory ◽  
State Behavior ◽  
Customary International Law ◽  
The Social ◽  
International Legal Order ◽  
Social Scientific ◽  
Vital Element ◽  
Affect State

Customary international law (CIL) is widely recognized as a fundamental source of international law. While its continued significance in the age of treaties was once contested, it is now generally accepted that CIL remains a vital element of the international legal order. Yet CIL is also plagued with conceptual and practical difficulties, which have led critics to challenge its coherence and legitimacy. In particular, critics of CIL have argued that it does not meaningfully affect state behavior. Traditional CIL scholarship is ill equipped to answer such criticism because its objectives are doctrinal or normative—namely, to identify, interpret, and apply CIL rules, or to argue for desirable changes in CIL. For the most part, that scholarship does not propose an explanatory theory in the social scientific sense, which would articulate how CIL works, why states comply, and why and how rules change.

scholarly journals Die Zukunft des Völkerrechts

2017 ◽  
Vol 26 ◽  
pp. 3 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
World Order ◽  
Legal Order ◽  
Positive Side ◽  
Normative Growth ◽  
International Legal Order ◽  
The Rich ◽  
Fragmentation Of International Law

The international legal order today constitutes a truly universal legal system. It has received guiding principles through the United Nations Charter: ever since this ‘Constitution for the world’ began operating, sovereign equality of states, self‑determination of peoples, and human rights have been key components of this architecture, which has reached a state of ‘conceptual unity’ belying the talk of ‘fragmentation’ of international law that so fascinated scholars in their debates only a short while ago. The great peace treaties of 1648, 1815, and 1919, as Euro‑centric instruments influenced by the interests of the dominant powers, could not bring about a peaceful world order. After World War II, it was, in particular, the inclusion of the newly independent states in the legislative processes that has conferred an unchallenged degree of legitimacy on international law. Regrettably, its effectiveness has not kept pace with its normative growth. Some islands of stability can be identified. On the positive side, one can note a growing trend to entrust the settlement of disputes to formal procedures. Yet the integration of human rights in international law – a step of moral advancement that proceeds from the simple recognition that, precisely in the interest of world peace, domains of domestic and international matters cannot be separated one from the other as neatly as postulated by the classic doctrine of international law – has placed enormous obstacles before international law. It must be expected that the demand for more justice on the part of developing nations will subject the international legal order to even greater strain in the near future. Currently, chances are low that the issue of migration from the poorer South to the ‘rich’ North can be resolved.

scholarly journals The new international legal order and new states in the Balkans

2006 ◽  
Vol 58 (3) ◽  
pp. 272-293 ◽  
Author(s):  
Dusko Dimitrijevic
Keyword(s):  
International Law ◽  
Essential Role ◽  
Legal Order ◽  
State Behavior ◽  
The Balkans ◽  
Starting Point ◽  
New States ◽  
International Legal Order ◽  
The One ◽  
Further Development

In this study the author attaches a great importance to the theoretical examination of the concept of the New International Legal Order that was embodied in the last decades of the 20th century. The starting point for that reflection is the dissolution of the SFR Yugoslavia that illustrates one of the fundamental legal precedents. Reminding that the basic principle for the post-modern State behavior must be the one that includes minimal disturbance of the existing international legal relations, the author stresses that "the Yugoslav case" was customized in the way to respond to the new reality where the principle of effectiveness played an essential role in valuation of the statehood. It could also be one of the greatest catalysts for all further 'development rules' of international law.

scholarly journals INTERNATIONAL LEGAL ORDER: ON THE ISSUE OF ITS PROPERTIES (THEORETICAL ASPECTS)

2016 ◽  
Vol 2 (127) ◽  
pp. 115-122
Author(s):  
I. Zabara
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
General Context ◽  
Theoretical Approaches ◽  
Ability To Act ◽  
The Status ◽  
International Legal Order ◽  
The Difference ◽  
Internal And External Factors

The article deals with one of the theoretical aspects of international legal order issues – the question of its properties. The author summarizes the doctrinal views of international law and regards the basic properties of the phenomenon of international legal order as its ability to act as system complexity, dynamism, orderliness, the reality and legitimacy of actions of subjects. The author notes that there is a common position in the doctrine, according to which the international legal order is a system. However, he notes that the difference in views on the international legal order as a system consists in the components the researchers include in its composition; the author examines two theoretical approaches. The complexity of the international legal order is determined from the standpoint of the number of its elements and components, as well as the number of their connections. This opinion highlights the fact that the predominant role is played by the quantity of links between elements and components, and indicates the international legal order capacity for permanent changes under the influence of the relevant internal and external factors. The dynamism of the international legal order is characterized from the point of capacity for the development and modification. It is stated that the state of the dynamics is effected by several circumstances. The author concludes that this international legal order’s property as a dynamism is one of the qualities that characterizes its condition as a system. The orderliness of the international legal order is considered from a consistency point, the interaction of parts of the whole, due to its structure. The author notes that the ordering of the international legal order displays its internal relationships and emphasizes its status as a system. The reality of the international legal order is characterized from the point of objectively existing phenomenon. The author concludes that the allocation of the international legal order of reality as one of its properties is intended to emphasize the status of one of its most important components - the state of international relations. Separately, the author considers the question of the legality of actions of subjects of international law, which are discussed in the doctrine from the standpoint of the conditions necessary for its maintenance. The author points out that in the general context of the properties that characterize the international legal order, it can be considered as an aspect wich together with other characterizes the state of the international legal order.

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