Due Diligence in International Law

Erscheinungsjahr 2023
ISBN: 978-90-04-53865-8
Verlag: Brill Academic Publishers

Buch, Englisch

Reihe: Hague Academy Special Editions

Since the concept of due diligence first appeared in arbitral decisions at the end of the nineteenth century, its success in international law has been growing steadily. Yet its nature, sources and regime remain indeterminate in many ways. In response to the objections currently raised against it, this book provides a critical analysis of the practice of due diligence in international law. Its aim is to determine whether a principle, standard and/or obligation of due diligence does indeed exist under general international law; to identify what could constitute its normative structure, foundation and general regime; to establish the conditions, content and modalities of implementation of international responsibility for negligence; and, finally, to examine the specificities of due diligence in special regimes of international law, such as international environmental law, international cybersecurity law and international human rights law. More generally, the book also examines the reasons for due diligence’s “renaissance” in international law’s recent history and explains what this revival says about the state of the international legal and institutional order and the possibilities for its reform.

Autoren/Hrsg.

Besson, Samantha

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Handels-, Wirtschafts- und Gesellschaftsrecht

Inhaltsverzeichnis

Introduction 21

Chapter I. Due diligence in international law: history and “renaissance”. 32

Introduction 32

A. The origins of due diligence in international law 33

1. The historiography of due diligence in international law 34

2. The genealogy of due diligence in international law 37

B. The “renaissance” of due diligence in international law 48

Chapter II. The general regime of due diligence in international law. 58

Introduction 58

A. The nature and foundation of due diligence 61

B. The sources and regimes of due diligence 69

1. The due diligence standard in general international law 69

2. Due diligence obligations in the special regimes of international law 72

C. The scope of due diligence 76

1. The personal scope of due diligence 77

(a) The duty-bearers of due diligence 77

(b) The beneficiaries of due diligence 85

(c) The third parties of due diligence 89

2. The material scope of due diligence 95

3. The geographic scope of due diligence 97

4. The temporal scope of due diligence 99

D. The conditions of due diligence 101

E. The content of due diligence 102

1. Obligations of x with due diligence 103

2. Due diligence measures or the absence of nuisance by negligence. 106

3. The reasonable character of diligence 107

F. The variability of due diligence 117

1. The principle of variability of due diligence 118

2. The parameters of variability of due diligence 120

(a) Knowledge of the (risk of) harm 121

(b) Capacity to adopt measures 121

(c) Control over the source of the (risk of) harm 122

(d) Degree of the risk of harm 123

(e) Severity of the potential harm 123

(f) Vulnerability or special quality of the beneficiary 123

G. The limits of due diligence 124

Chapter III. Due diligence in international responsibility law 128

Introduction 128

A. Negligence in international responsibility law 133

1. International responsibility without fault 133

2. Fault in international responsibility 136

(a) Explicit traces of negligence in international responsibility law. 137

(b) Tacit traces of negligence in international responsibility law. 140

B. Due diligence and the conditions of international responsibility 141

1. Responsibility for negligence and the condition of attribution 143

(a) Responsibility for negligence and responsibility by attribution of the conduct of private persons 144

(b) Responsibility for negligence and responsibility by attribution of the responsibility of another State or IO 146

2. Responsibility for negligence and the condition of the breach of inter- national law 153

C. Due diligence and the content of international responsibility 158

D. Due diligence and the implementation of international responsibility. 160

1. The invocation of responsibility for negligence in case of a plurality of responsible States and/or IOs 161

2. The invocation of responsibility for negligence and countermeasures 163

Chapter IV. Due diligence in the special regimes of international law. 166 Introduction 166

A. Due diligence in international environmental law and international cyber- security law 167

1. Due diligence in international environmental law 167

(a) The nature and sources of due diligence in international environ- mental law 168

(b) The scope, content, variability and limits of due diligence in international environmental law 174

2. Due diligence in international cybersecurity law by way of comparison 179

(a) International cybersecurity law against the background of the general regime of due diligence 180

(b) A comparative assessment of due diligence in international cyber- security law and international environmental law 183

B. Due diligence in international human rights law 185

1. The nature and sources of due diligence in international human rights law 187

2. The scope of due diligence in international human rights law 193

(a) The personal scope of due diligence in international human rights law 194

(b) The material scope of due diligence in international human rights law 203

(c) The geographic scope of due diligence in international human rights law 204

(d) The temporal scope of due diligence in international human rights law 205

3. The conditions, content, variability and limits of due diligence in inter- national human rights law 206

Conclusion 210

Bibliography 217

Über Autor(innen)

Samantha Besson holds the Chair Droit international des institutions at the Collège de France in Paris and is a Professor of Public International Law and European Law at the University of Fribourg (Switzerland). She is an associate member of the Institute of International Law and co-chair of the ILA Study Group on the International Law of Regional Organizations.