Principle Of Due Diligence Research Articles

Practices and Implications of Regional Organizations for the Consensus on the Principle of Due Diligence under International Law in Cyberspace

Practices and Implications of Regional Organizations for the Consensus on the Principle of Due Diligence under International Law in Cyberspace

The international law principle of due diligence and its application to the cyber context

Este artículo analiza la aplicación del principio de diligencia debida en Derecho internacional al contexto cibernético. Con este objetivo, el artículo describe en primer lugar los principales elementos de este principio en el contexto cibernético actual, marcado por la creciente amenaza que representan los ciberataques. A continuación, el artículo analiza la naturaleza jurídica del principio y su aplicación al ámbito cibernético a la luz de la práctica internacional de Estados y Organizaciones internacionales y concluye con una serie de consideraciones sobre su plena vigencia actual como obligación jurídica y su posible desarrollo futuro.

Countermeasures against Cyber Operations: Moving forward?

Summary The paper is devoted to the analysis of countermeasures in the context of cyber operations. This circumstance precluding wrongfulness is one of the tools that states can use in response to (not only) malign cyber operations that fulfil the characteristics of an internationally wrongful act. The paper examines the various material and procedural conditions of countermeasures and the specifics of their implementation in cyberspace. The second part of the paper then discusses contentious issues related to countermeasures, namely the relationship between countermeasures and the principle of due diligence, the possibility of implementing forcible countermeasures, and finally the current status of collective countermeasures under customary international law.

Defending medical facilities from cyber attacks: critical issues with the principle of due diligence in international law

ABSTRACT I explore reasons why existing defense has failed to prevent cyber attacks on medical facilities. I look into one of the least studied notions of cyberspace behavior known as the principle of due diligence. The principle posits that states should do their best not to allow their territory to be used for cyber operations that produce adverse consequences for other states. I point out three reasons why the principle has failed to protect medical facilities. First, the principle of due diligence suffers from flaws with its enforcement mechanism and applicability to nonstate hackers. Second, the principle suffers from the lack of specificity in that it has never clarified what potential targets are supposed to be spared. Finally, the principle is prone to fail to mobilize states enmeshed with providers of network infrastructure – internet service providers (ISPs) – to practice due diligence. In sum, my analysis shows that factors that are external to the principle are as critical as internal ones in shaping the principle’s ineffectiveness. While the principle is not the only cause of failure to prevent attacks on medical facilities, it is one of the reasons for the failure.

Unpacking Corporate Due Diligence in Transnational Climate Litigation: A Planetary Perspective

Straddling national and transnational law, corporate due diligence presents a legal quandary. How should business entities address climate change matters? Due diligence generally implies the duty to assess and disclose potential risks and uncertainties in addition to the duty to prevent and manage risks and uncertainties based upon global standards of expected conduct. In this context, has a duty of climate due diligence emerged to protect both society and shareholders? Further, what legal sources are currently shaping climate due diligence? This article explores the implications of due diligence derived from transnational climate change litigation against business entities. The research field is still nascent — with only one decision clearly addressing the benchmark against which business entities shall conduct climate due diligence. In this landmark case, Milieudefensie v Shell (2021), the District Court of The Hague mandated climate due diligence obligations upon Royal Dutch Shell, as aligned with Dutch tort law, international law, the European Convention on Human Rights case law, and transnational soft law instruments, notably the United Nations’ Guiding Principles on Business and Human Rights (UNGPs) and the reports of the Intergovernmental Panel on Climate Change (IPCC). Focusing on the underexplored topic of due diligence in transnational law, this article sheds light on the ground-breaking, albeit methodologically problematic, treatment of legal sources in the due diligence benchmark elucidated in Milieudefensie v Shell. Moreover, the paper explores how the planetary boundaries theory can provide courts with a toolbox to operationalise IPCC reports and the UNGPs and anchor them in the doctrine of legal sources for corporate accountability over climate issues. Because no general principle of due diligence exists, transnational climate litigation proves key to articulating science-based business duties in mandatory due diligence over climate matters. Focusing on the underexplored topic of due diligence in transnational law, this article sheds light on the ground-breaking, albeit methodologically problematic, treatment of legal sources in the due diligence benchmark elucidated in Milieudefensie v Shell. Moreover, the paper explores how the planetary boundaries theory can provide courts with a toolbox to operationalise IPCC reports and the UNGPs and anchor them in the doctrine of legal sources for corporate accountability over climate issues. Because no general principle of due diligence exists, transnational climate litigation proves key to articulating sciencebased business duties in mandatory due diligence over climate matters.

Back to the Roots: The Laws of Neutrality and the Future of Due Diligence in Cyberspace

Abstract The question of whether the due diligence rule applies in cyberspace has become a key issue in the cyber norms debate. Yet there is no consensus whether the rule is binding, and states lack clear guidance on what the norm requires them to do. This is not just unfortunate but also dangerous since a crisis caused by a cyber attack routed through a third state where the victim state and the third state have fundamentally different views as to which duties apply carries a serious escalation risk. While scholars have suggested adapting legal approaches from other successful due diligence regimes, these rules are not a good match for the crucial issue in cyber due diligence: what do states need to do to ensure that no state is attacked using their networks? This article suggests going back to the roots and implementing principles derived from the laws of neutrality, the field that originally brought the due diligence principle into international law. Designed to manage escalation risk at the fringes of international conflict, it is our best guide through the grey zone of due diligence in cyberspace. The classic cases such as Alabama and Corfu Channel were disputes related to armed conflicts but between states that were at peace with each other. Read closely, they offer clear guidance on how to develop a flexible, but reliable, due diligence standard for cyberspace that will help states manage expectations of responsible behaviour and thereby defuse future potential conflicts before they arise, while avoiding the need to formally attribute the original attack. The final section will seek to consolidate the historical, legal as well as technological developments discussed here to lay out what the due diligence rule in cyberspace is likely to look like soon.

Spory o błąd medyczny – analiza wykorzystania dowodów z procesów dyscyplinarnych lekarzy w procesach odszkodowawczych

The article presents the principles of practicing the medical profession, which are based not only on compliance with the law, but also have their basis in professional deontology. It should be assumed that one of the most important principles that a physician should never forget at every stage of his or her professional activity is the principle of due diligence. This issue of medical due diligence is assessed by both medical and civil courts. The study indicates the legal and actual possibilities of using evidence from proceedings before a medical court in a civil trial for a medical error. The following evidence was analyzed: medical records, expert opinion, and judgments issued by other courts.

The Concept of Due Diligence and Notification on The Epidemic: A Legal Study In International Responsibility: Covid 19 As A Model

The Article focused on the two topics of due diligence and notification on the epidemic in light of the rules of international responsibility because the controversy and legal debate is still raging in determining the legal framework for both concepts, as two hypotheses conflict in this framework: The same rule of care, in contrast to the claim of an injured country as a result of not taking the assumed care. In this context, it is necessary to indicate the limits of due diligence and one of its most critical preventive forms, which is the notification before the occurrence of the damage, and whether it is strict normative or circumstantial related to before, during, and after the event of the damage. With the spread of deadly epidemics in the international community and the damage that resulted from their spread, it has become necessary for international jurisprudence to take a serious stand to fill the legal gaps related to dealing with the spread of deadly epidemics. Therefore, among the crucial matters about the principle of due diligence that the state must do, as well as notification to deal with issues that may threaten international peace and security, including epidemics, we will work on clarifying the concepts of due diligence and notification in light of the current legal rules and their effectiveness in curbing the evasion of international responsibility.

The principle of due diligence and risk management

The principle of due diligence and risk management

Legal instability in cyberspace and OSCE’s mitigation role

After the international legal community widely endorsed the application of international law to cyberspace, many open questions remain on the concrete interpretation of existing rights and obligations to the cyber realm. In pursuit of its mandate to promote human rights and conflict prevention, the OSCE can play a major role to support operationalization of international law and application of existing principles to cyberspace. This paper examines some key steps in the aftermath of the creation of norms of behavior, and transparency and confidence-building measures. After a brief analysis of the normcreation process, this piece identifies several pressing cybersecurity challenges on the international landscape, and offers suggestions for consolidating the voluntary non-binding norms States agreed upon. Using lessons learned from other domains, the analysis will focus on mechanisms of building further stability and transparency in cyberspace, in particular by reference to the due diligence principle and States’ human rights obligations.

THE IMPACT OF COVID-19 ON HUMAN RIGHTS: A CRITICAL ANALYSIS OF THE LAWFULNESS OF MEASURES IMPOSED BY STATES DURING THE PANDEMIC UNDER INTERNATIONAL LAW

The COVID-19 pandemic provided ideal conditions for the violation of human rights. In efforts to curb the spread of the virus, numerous states violated their international law obligations outlined in treaties and customary international law. This article aims to analyse state responses to the global pandemic and will consider how their lawfulness should be measured. To this end, the framework of due diligence is utilised as a system to regulate and assess the legality of state actions amidst times of emergency. Furthermore, this article argues that the principle of due diligence must be developed to sufficiently regulate instances of derogation that extend beyond restrictions. This development must also be informed by an intersectional approach that prioritises the protection of vulnerable groups, owing to the disproportionate impact of COVID-19 on these communities. Stemming from this analysis, the article will conclude by considering the landscape of state actions in handling COVID-19 under the banner of due diligence and imagines a construction of international law that more adequately protects human rights amid regional and global crises.

International Law and Cyberoperations

Foreign cyberattacks and interferences are becoming more frequent and sophisticated. In the continued absence of a general consensus regarding the applicability of concrete international legal rules in the domain of cybersecurity, individual States are beginning to determine unilaterally their national positions. The article introduces and critically assesses the national strategy of France published in late 2019 in light of current international law and further developments in 2020. France confirms the validity of current international legal norms and raises challenging and innovative legal points for an efficient update such as the right to respond to any unlawful cyberoperation that targets France, right to preemptive self-defence, and violation of the due diligence principle. The mission of the article is to evaluate the document as an important source of impetus and the potential of its impact in international law of cybersecurity.

ПРОБЛЕМАТИКА ПРИМЕНЕНИЯ ПРИНЦИПА ДОЛЖНОЙ ОСМОТРИТЕЛЬНОСТИ ПРИ ОСУЩЕСТВЛЕНИИ НАЛОГОВОГО КОНТРОЛЯ В ЦЕЛЯХ ОБЕСПЕЧЕНИЯ ЭКОНОМИЧЕСКОЙ БЕЗОПАСНОСТИ ПРЕДПРИЯТИЯ

The article deals with the problems of applying the principle of due diligence in the current activities of the organization in the implementation of tax control in order to ensure
 the economic security of the enterprise in modern conditions of increasing the capabilities of information systems. Special attention is paid to the requirements of reliability of accounting and tax accounting. It is concluded that compliance with the strict requirements of the performance standards and innovations of Russian legislation on the tax records allows you to ensure the economic security of economic entity, for this purpose it is necessary to monitor the compliance of accounting policy for accounting purposes and for taxation purposes the requirements of the legislation of the Russian Federation on accounting and taxation, given the characteristics of economic activity of the enterprise. Emphasis is placed on the reliability of accounting and tax accounting. The principles of due diligence in the calculation of value added tax are important. It is stated that at present, there is no legally established definition of the principle of due diligence, which does not allow its extended interpretation by law enforcement agencies.

The problems of violence against women in international law

The problems of violence against women and domestic violence were reflected in Goal No. 5 of the 2030 Agenda for Sustainable Development, which calls for gender equality and empowerment of women and girls while addressing such challenges as elimination of all forms of discrimination against women and girls; eradication of violence against women and girls in the public and private sphere, including human trafficking, sexual and other forms of exploitation; liquidation of all harmful practices, in particular forced marriages and female genital mutilation. In this article, the authors examine existing conventional and doctrinal definitions and qualifications of the terms “violence against women” and “domestic violence” in international law, explore international legal aspects of prevention and combatting violence against women and domestic violence, conduct a comprehensive analysis of a conceptual framework related to these offences, and present basic approaches to the concept of domestic violence. The authors also examine the link between two core international universal and regional legal acts in this field — Convention on the Elimination of all Forms of Discrimination against Women and Council of Europe Convention on preventing and combatting violence against women and domestic violence. The authors derive a new understanding of the due diligence principle (a well-known principle/standard in international law) with regard to violence against women and domestic violence issues, clarify its key components while codifying states’ main obligations in this sphere. In conclusion, the authors deduce that the questions of elimination of discrimination against women and eradication of violence against women can only be considered collectively, confirming the validity of the theory of a genderbased approach to the issue, which is adhered to by international human rights bodies.

Of the Women’s Rights Jurisprudence of the ECOWAS Court: The Role of the Maputo Protocol and the Due Diligence Standard

The Maputo Protocol, adopted in 2003, was intended to counterbalance the normative deficiencies of the African Charter with respect to women’s rights. However, 15 years down the line, there is not much case law on the Protocol. The ECOWAS Court made its first pronouncement on the Protocol in 2017 in Dorothy Njemanze & 3 Others v. The Federal Republic of Nigeria. This paper analyses three gender-based violence decisions by the Ecowas Court: Dorothy Njemanze, Aminata Diantou Diane and Mary Sunday cases. The paper examines the potential of the Protocol and the due diligence principle in influencing the Ecowas Court’s jurisprudence on women’s rights and makes recommendations.

Attribution of cyber operations: an international law perspective on the Park Jin Hyok case

States are increasingly willing to publicly attribute hostile cyber operations to other States. Sooner or later, such claims will be tested before an international tribunal against the applicable international law. When that happens, clear guidance will be needed on the methodological, procedural and substantive aspects of attribution of cyber operations from the perspective of international law. This article examines a recent high-profile case brought by the United States authorities against Mr Park Jin Hyok, an alleged North Korean hacker, to provide such analysis. The article begins by introducing the case against Mr Park and the key aspects of the evidence adduced against him. It then considers whether the publicly available evidence, assuming its accuracy, would in principle suffice to attribute the alleged conduct to North Korea. In the next step, this evidence is analysed from the perspective of the international jurisprudence on the standard of proof and on the probative value of indirect or circumstantial evidence. This analysis reveals the need for objective impartial assessment of the available evidence and the article thus continues by considering possible international attribution mechanisms. Before concluding, the article considers whether the principle of due diligence may provide an alternative pathway to international responsibility, thus mitigating the deficiencies of the existing attribution law. The final section then highlights the overarching lessons learned from the Park case for the attribution of cyber operations under international law, focusing particularly on States' potential to make cyberspace a more stable and secure domain through the interpretation and development of the law in this area.

Effects Of Auditors’ Culpability On Creative Accounting In Southwest Nigeria

The study examined the effects of auditors’ culpability on creative accounting in Southwest Nigeria. The study employed questionnaire to gather data from 66 managers and 66 accountants. The study was analysed with the use of descriptive statistics and One Way Analysis of Variance to test the hypotheses of the study. The study found that auditors’ culpability has no effect on creative accounting in private sector in Nigeria. The study revealed that that the reasons for statutory auditors engaging in creative accounting practices have effect on the practice of creative accounting in Nigeria. The study recommends that accountants should uphold high ethical standards and maintain integrity in all their professional dealings. Accountants should not allow personal prejudice or bias to override the principle of objectivity, transparency and due diligence in the profession. Auditors must not only develop questioning mind, skill for critical assessment of audit evidence but must also exercise these skills with reasonable care and diligence.

The possibility of protecting the rights of the taxpayer when applying the principle of due diligence through the mechanism ex post facto

The possibility of protecting the rights of the taxpayer when applying the principle of due diligence through the mechanism ex post facto

THE ROLE OF DUE DILIGENCE IN INTERNATIONAL LAW

AbstractThis article makes two main propositions about the role of due diligence in international law, in response to recent interest in the topic. First, a legal requirement to exercise due diligence may be a component part of a primary rule of international law, but this can only be determined by referring back to the primary rule in question (eg what degree of fact-finding does treaty provision X require a State party to that treaty to undertake, either explicitly or implicitly, to act consistently with its terms?). In other words, there is no ‘general principle of due diligence’ in international law. Second, States undertake what could be characterised as ‘due diligence’ activity (eg by introducing policy guidance for their officials), some elements of which may be a result of a legal requirement and some of which may not (eg where done solely for policy reasons). Current practice of the United Kingdom and United States is used to illustrate the point. The lack of a distinction between the ‘legal’ and ‘non-legal’ elements of conduct in a given area gives States the flexibility to act without feeling unduly constrained by international law, and at the same time actually promotes compliance with international law and may assist in its development over time. In contrast, pushing for a ‘general principle of due diligence’ in international law is unnecessary, and risks having a chilling effect on this positive legal/policy ‘due diligence’ behaviour by States.

The State Duty to Protect Against Human Rights Violations Through Transnational Business Activities

Transnational corporations are currently not formally bound by international human rights obligations. Instead, states have a duty to protect individuals against human rights abuses by third parties, including corporations. While it is undisputed that this obligation extends to all individuals living on the territory of the respective state, the extraterritorial scope of the duty to protect remains contested. This is especially the case for human rights violations through transnational business activities. The state on whose territory the violation occurs has a duty to protect human rights by adopting and implementing labour and environmental laws applicable in that state. However, it is less clear if and to what extent the state of the main seat of the mother company or the global ordering company — the ‘home state’ — also has a human rights duty to regulate transnational business activity. This article argues that such a duty can be based on existing human rights doctrine and standards of general international law such as the ‘no harm’ rule and the due diligence principle. It argues that states have a duty to regulate transnational business activities of corporations over which they exercise jurisdiction if human rights violations caused by such activities are predictable and preventable. In its final part, the article assesses various approaches in state practice which could be seen as instruments in the fulfillment of the duty to regulate transnational business activities.