Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights

Abstract

Due diligence is a frequently employed notion in international law, yet much is still to be explored about this concept. This article aims to contribute to an understanding of due diligence obligations in international law, which is useful as it can form the basis for a further clarification of corresponding legal rights of subjects of international law. With this purpose in mind, this article initiates the construction of a working model of due diligence in international law by exploring this notion from two perspectives: an accountability perspective and a regulatory perspective. Subsequently, this article will use this model to compare the operation of due diligence obligations in two branches of international law: international environmental law and international human rights law. In doing so, it will become clear that due diligence contains two core elements: ‘reasonableness’ and ‘good faith’. Moreover, it will become apparent that the operation of due diligence obligations in these two branches has implications for systemic issues in international law. Further research on the operation of due diligence obligations in other branches of international law is therefore recommended.

Transforming the Rule of Law in Environmental and Climate Litigation: Prohibiting the Arbitrary Treatment of Future Generations

“…The legal doctrines I identified above are vaguely defined, open-textured norms, the application of which to particular facts leaves considerable room for judicial discretion. For instance, the concept of due diligence under international human rights law does not entail specific obligations for states, 163 nor do the public trust doctrine or the right to a healthy environment. Courts therefore need to find substantive benchmarks to appraise the compatibility of sovereign conduct with normative requirements.…”

Preventing long-term risks to human rights in smart cities: A critical review of responsibilities for private AI developers

“…One way to clarify the matter would be to borrow from States' due diligence obligations under international and European human rights law, a key aspect of which is reasonableness. What is reasonably to be expected of States is assessed alongside their knowledge/foresight of risks, their capacity, the interests at stake and the control of the State in a given situation (Malaihollo, 2021;Monnheimer, 2021). While not directly transposable to AI businesses, these parameters could provide inspiration for defining what is a "reasonably foreseeable" risk or misuse of smart city AI.…”

The Future is Now: Climate Cases Before the ECtHR

“…In the past it has accordingly referred to the principles of precaution or due diligence. 109 For example, in Tătar v Romania, the Court noted the importance of the precautionary principle, 110 and in Cordella, it applied a due diligence standard. 111 These references are overall still very rare, however, as are for example references to the Aarhus Convention, 112 and further clarification is needed to understand what the Convention requires from states in this context.…”