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This article makes two main propositions about the role of due diligence in international law, in response to recent interest in the topic. First, a legal requirement to exercise due diligence may be a component part of a primary rule of international law, but this can only be determined by referring back to the primary rule in question (eg what degree of fact-finding does treaty provision X require a State party to that treaty to undertake, either explicitly or implicitly, to act consistently with its terms?). In other words, there is no ‘general principle of due diligence’ in international law. Second, States undertake what could be characterised as ‘due diligence’ activity (eg by introducing policy guidance for their officials), some elements of which may be a result of a legal requirement and some of which may not (eg where done solely for policy reasons). Current practice of the United Kingdom and United States is used to illustrate the point. The lack of a distinction between the ‘legal’ and ‘non-legal’ elements of conduct in a given area gives States the flexibility to act without feeling unduly constrained by international law, and at the same time actually promotes compliance with international law and may assist in its development over time. In contrast, pushing for a ‘general principle of due diligence’ in international law is unnecessary, and risks having a chilling effect on this positive legal/policy ‘due diligence’ behaviour by States.
Chapter III explores the terms in which international human rights law governs the conduct of Executive Directors as member State representatives in international financial institutions and how their responsibility may ultimately be engaged in case of human rights violations. Inspired by rule of law requirements of legality, and the constitutional values of representation and responsiveness, the first part of the chapter examines how these elements have been incorporated in the human rights regime. The notion that member States have a due diligence duty to ensure that human rights are respected and protected throughout institutional operations is analysed in two particular instances, notably, in their role as participants in institutional decision-making, as well as creators of the organisation’s structure and operational framework. The final part of the Chapter examines how member States’ failure to act diligently brings about their international responsibility. It thus analyses the various elements that define the determination of wrongfulness, as well as the provision of remedies to victims. In so doing, it addresses questions such as that of standing, of causality, and the division of reparation duties among multiple member States and the international financial institution.
The absence of control of a territorial state over part of its physical territory is closely associated with online human rights violations, on the one hand, and the state's restricted (but not necessarily absent) control over the cyberspace, on the other. Notwithstanding the lack of its effective territorial control, the territorial state continues to be entitled to exercise its sovereignty over both territory and cyberspace. The consequence of sovereignty in international human rights law is the territorial state's presumed jurisdiction over its entire national territory. The article claims that the territorial state, while lacking the effective means to control its cyberspace fully as it does in the government-controlled areas, has continuing jurisdiction, and consequently obligations, to protect human rights online from wrongful acts that originate, occur or have effect in the area outside its effective control. Treaty monitoring bodies have recommended various positive measures that any territorial state is required to take while seeking to restore its ‘internet sovereignty’ in the separatist region, depending on the means in its power that are feasible in the particular situation.
The technical and legal challenges of attribution in cyberspace prevent the meaningful operation of the international law framework of State responsibility. Despite the anticipation surrounding its publication, the Tallinn Manual 2.0 went no further than its predecessor in offering a cogent legal solution to this problem. Instead, the Manual confined its analysis of attribution to the well-known provisions of the International Law Commission's Articles on State Responsibility. This article departs from the Tallinn Manual 2.0 in arguing that the due diligence principle offers a preferable and appropriate standard of attribution in cyberspace.
Article 16 of the International Law Commission's Articles on State Responsibility provides that a State that aids or assists another State in the commission of an internationally wrongful act by the recipient State is internationally responsible, where certain conditions are fulfilled. This article clarifies one of those conditions, namely the difficult and contested issue of what degree of knowledge or intent engages the responsibility of an assisting State under Article 16. The article focuses particularly on assistance in armed conflict and counterterrorism situations, which increasingly feature some form of operational or intelligence cooperation between States.
Physicians participate in the screening, routine medical supervision, and disqualification of student-athletes. In doing so, they should understand that eligibility/disqualification decisions inevitably have associated liability issues. It is the responsibility of physicians to take the lead role in the student-athlete medical assessment process to allow for optimum safety in sports programmes. The first duty of the physician is to protect the health and well-being of the student-athlete. However, because there is potential liability associated with the screening/disqualification process, physicians are wise to develop sound and reasonable strategies that are in strict compliance with the standard of care. This article focusses on cardiac screening and disqualification for participation in sports.
The UN Guiding Principles on Business and Human Rights endorse a risk management perspective of human rights due diligence, which may create ambiguities with regard to the nature of risk and the objectives of risk management. By ‘human rights risk’ we understand a business enterprise’s potential adverse human rights impacts. Human rights risk can be contrasted to an enterprise’s ‘social risk’ which refers to the actual and potential leverage that people or groups of people with a negative perception of corporate activity have on the business enterprise’s value.
This article puts forward the argument that due diligence in respect of human rights risk is conceptually incompatible with the management of social risk, because social risk management and human rights due diligence vary at each step of the risk management process (risk identification, risk measurement and assessment, risk reduction measures). To resolve this incompatibility, an effective integration of human rights due diligence processes into corporate risk management systems would require an elevation of human rights respect to a corporate goal that determines corporate strategy.
This article considers the emerging practice of human rights impact assessment (HRIA) in the field of business and human rights. As HRIA is relatively new, current approaches vary considerably, indicating that there is a need for the business and human rights community to engage in further dialogue and debate about what good practice HRIA can and should entail. I propose five key criteria for HRIA of business activities: (1) applying international human rights standards; (2) considering the full scope of impacts; (3) adopting a human rights-based process; (4) ensuring accountability; and (5) addressing impacts according to severity. It is suggested that these criteria should form the basis of methodologies used to assess human rights impacts of business activities, with the view to developing HRIA practice that meaningfully contributes to preventing and addressing adverse impacts of business activities on the human rights enjoyment of workers and communities.
This article introduces a novel way in which human rights due diligence can be ‘enhanced’ to respond to business and human rights challenges specific to conflict affected areas. It makes two key arguments. First, it claims that a crucial and often neglected factor for understanding human rights risks in conflict affected areas is that businesses face escalating and largely unpredictable human rights risks once they become involved in conflict. Second, the article shows how integrating aspects of the well-established method of conflict sensitive business practice into human rights due diligence can help companies address this challenge. For instance, companies should include a conflict analysis in human rights impact assessments and systematically identify and address their actual or potential impacts on conflict. This article provides support to a UN Working Group proposal for the integration of conflict sensitive business practices into human rights due diligence.
The 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 beyond jus cogens and 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.
This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to exercise due diligence would create a rebuttable presumption of causation and hence liability. A company could then avoid liability only by carrying its burden to prove that the risk of the human rights violations was not reasonably foreseeable, or that the damages would have resulted even if the company had exercised due diligence.
On April 2, 2015, the International Tribunal for the Law of the Sea (ITLOS or Tribunal) rendered an advisory opinion on the rights and obligations of flag states and coastal states regarding illegal, unreported, and unregulated (IUU) fishing within the exclusive economic zone (EEZ). ITLOS confirmed that the full Tribunal—not just its Seabed Disputes Chamber—has jurisdiction to render advisory opinions, a matter of controversy that had previously been untested. The Tribunal also held that under the 1982 United Nations Convention on the Law of the Sea (UNCLOS or Convention), flag states have a “due diligence” obligation to ensure that vessels flying their flag do not engage in IUU fishing activities, and that the flag state may be held liable if that obligation of due diligence is breached. In addition, the Tribunal clarified that where fisheries competence has been transferred from a state to an international organization, it is the organization, not the flag state, that may face liability for a failure to have taken adequate measures to prevent IUU fishing. Finally, the Tribunal confirmed that coastal states have a duty to consult and cooperate with each other in the sustainable management of shared stocks and highly migratory species.
This article discusses some of the challenges that may be encountered by companies seeking to adhere to the Voluntary Principles on Security and Human Rights and the United Nations Guiding Principles on Business and Human Rights when operating in conflict-affected countries. The authors argue that corporate respect for human rights may not be sufficient to correct or compensate for state failure and also suggest that the leverage or influence enjoyed by individual companies in relation to the conduct of security forces and host governments may be limited, particularly in times of crisis. There is therefore a need for a collective approach to human rights risks in conflict-affected countries, and this should focus on public security sector reform and good governance as well as on corporate due diligence.
Over the past forty years, there has been a steady rise in the expectation for companies to operate as responsible citizens. Today companies have at their disposal a variety of initiatives, and new levels of accountability have been reached with the advancement of international standards on, among others, corporate responsibility to respect human rights. Against this background, this article provides an overview of the most important guiding tools available on this subject and on how to promote peace and stability when operating in conflict-affected or high-risk areas. The article argues that ongoing stakeholder engagement is a key success factor in meeting the responsibility to respect human rights and that it has to be an integral part of a company's strategy, especially when operating in conflict-affected countries.