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Due Diligence in International Law: Hague Academy Special Editions

Autor Samantha Besson
en Limba Engleză Paperback – 14 feb 2023
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.
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Specificații

ISBN-13: 9789004538658
ISBN-10: 9004538658
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Hague Academy Special Editions


Notă biografică

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.

Cuprins

Introduction21
Chapter I. Due diligence in international law: history and “renaissance” .32
Introduction32
A. The origins of due diligence in international law33
1. The historiography of due diligence in international law34
2. The genealogy of due diligence in international law37
B. The “renaissance” of due diligence in international law48
Chapter II. The general regime of due diligence in international law . . .58
Introduction58
A. The nature and foundation of due diligence61
B. The sources and regimes of due diligence69
1. The due diligence standard in general international law69
2. Due diligence obligations in the special regimes of international law72
C. The scope of due diligence76
1. The personal scope of due diligence77
(a) The duty-bearers of due diligence77
(b) The beneficiaries of due diligence85
(c) The third parties of due diligence89
2. The material scope of due diligence95
3. The geographic scope of due diligence97
4. The temporal scope of due diligence99
D. The conditions of due diligence101
E. The content of due diligence102
1. Obligations of x with due diligence103
2. Due diligence measures or the absence of nuisance by negligence . .106
3. The reasonable character of diligence107
F. The variability of due diligence117
1. The principle of variability of due diligence118
2. The parameters of variability of due diligence120
(a) Knowledge of the (risk of) harm121
(b) Capacity to adopt measures121
(c) Control over the source of the (risk of) harm122
(d) Degree of the risk of harm123
(e) Severity of the potential harm123
(f) Vulnerability or special quality of the beneficiary123
G. The limits of due diligence124
Chapter III. Due diligence in international responsibility law128
Introduction128
A. Negligence in international responsibility law133
1. International responsibility without fault133
2. Fault in international responsibility136
(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 responsibility141
1. Responsibility for negligence and the condition of attribution143
(a) Responsibility for negligence and responsibility by attribution of the conduct of private persons144
(b) Responsibility for negligence and responsibility by attribution of the responsibility of another State or IO146
2. Responsibility for negligence and the condition of the breach of inter- national law153
C. Due diligence and the content of international responsibility158
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 IOs161
2. The invocation of responsibility for negligence and countermeasures163
Chapter IV. Due diligence in the special regimes of international law . .166 Introduction166
A. Due diligence in international environmental law and international cyber- security law167
1. Due diligence in international environmental law167
(a) The nature and sources of due diligence in international environ- mental law168
(b) The scope, content, variability and limits of due diligence in international environmental law174
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 diligence180
(b) A comparative assessment of due diligence in international cyber- security law and international environmental law183
B. Due diligence in international human rights law185
1. The nature and sources of due diligence in international human rights law187
2. The scope of due diligence in international human rights law193
(a) The personal scope of due diligence in international human rights law194
(b) The material scope of due diligence in international human rights law203
(c) The geographic scope of due diligence in international human rights law204
(d) The temporal scope of due diligence in international human rights law205
3. The conditions, content, variability and limits of due diligence in inter- national human rights law206
Conclusion210
Bibliography217