Due Diligence in International Law
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Due diligence is increasingly invoked in arbitral awards, court decisions, soft law texts, and in scholarly discussions on state responsibility. In contrast, the term is conspiciously rare in hard international treaty law. Initially a notion pertaining solely to the secondary rules of state responsibility, due diligence has in the course of the last decades been shifted to the level of primary rules. But the specific normative content and systematic relation of due diligence to other international legal or para-legal principles (such as reasonableness, good neighbourliness, good governance, the no-harm principle, or corporate social responsibility) has largely remained unexplored.
Our project aims to address this normative gap and carve out the concept’s underlying principles, its content, scope, and realm of application. By a cross-cutting study we aim to find out whether a common understanding of due diligence throughout the different areas of international law and possibly across different types of legal persons (states, IOs, other) can be traced and, if so, whether this warrants qualifying due diligence as an overarching principle of international law. We approach the topic inductively (“bottom-up”), and to this end have invited specialists in various sub-areas of international law to contribute to a book. The authors’ workshop is scheduled for July 2018.
The broad categories chosen for investigation include
law of state responsibility
human rights law
peace and security law
- the law of
The task for each author is to examine how the notion of due diligence (and its functional equivalents such as risk assessment and preventive measures) has played out within the major subject matter areas of international law and to analyse how international due diligence could or should evolve in these areas in the future.
Research questions comprise the following: Is there an emerging common understanding of a due diligence standard across various areas of international law? If so, what does this standard entail? Can we distinguish clusters of obligations, e.g. obligations concerning a state’s institutional capacity as opposed to specific procedural obligations to notify, to consult, or to conduct risk assessments?
Is due diligence a substantive standard of conduct of itself or only a conceptual tool to ascertain compliance with obligations stipulated elsewhere? Does the emergence of a common understanding or the lack of it say anything about the role of states in regulating non-state actors in the international legal order or about the fragmentation of international law?
The book seeks to provide the first comprehensive analysis and assessment of the content, scope, and function of due diligence in international law and to infer, from the variety of pertinent areas of international law, the structural implications of the potential rise of the due diligence concept for the overall state of the international legal system.