The Due Diligence Principle Under International Law

Abstract

There has been much talk in recent years of the role of non-state actors in a historically state-centric international legal order. Although much progress has been made on the law of state responsibility, particularly thanks to James Crawford’s special rapporteurship on the project at the International Law Commission (ILC), there does not yet exist a corresponding comprehensive framework for the international responsibility of non-state actors. This may lead one to conclude that a lacuna exists in the law of responsibility. This article explores the interface of state responsibility, non-state actors, and the due diligence principle. It begins by examining the various principles of responsibility under international law. After doing so, it closely considers the deliberations of the ILC on the topic of state responsibility. In light of these developments, attention is then paid to exactly what has been expected of states with regard to the activities of non-state actors during the last century. This overview focuses on the due diligence principle, a principle which, it is argued, can be restrictively or expansively interpreted, as the particular facts and circumstances require, to hold states responsible for their actions or omissions related to non-state actors.