As Professor Zimmermann did in the last part of his chapter, I would like to recount the beginning of my academic journey in Rome in 2005 at the University of Roma Tre. Like many Italian students, I was preparing for the oral exam in private law with a fellow student. It is common for Italian students to memorise entire books of thousands of pages without fully grasping their contents. I vividly remember the day we were discussing distance contracts, consumer sales of goods, and travel packages. At one point, my colleague interrupted me and said, ‘This European law stuff is never asked about by the professor. Let's skip it’.

This was my first contact with what I thought was European law. After graduation, in 2010, I spent a year in Munster, Germany, where I had the opportunity to meet Professor Reiner Schulze, one of the co-founders, together with Reinhard Zimmermann and Stefan Grundmann, of the German-European Private Law Journal Zeitschrift fur Europaisches Privatrecht. During a meeting of the doctoral students, Professor Schulze told us that we were lucky because we had very important times ahead of us: we would probably be doctoral students during the period in which the European Civil Code or a similar instrument would be enacted at the European level.

1. Aim of the chapter – As alluded to in the introduction, the aim of the first part of this book – consisting of its first four chapters – is to set the stage and outline the broader research framework against which the book's central research issue is to be understood. This will be done, first, by determining the premises upon which this study on mandatory home state regulation of potentially harmful business activities in or pertaining to illegally occupied territories is based, and, secondly, by justifying why these premises – rather than others – are taken as a starting point. One of these premises or “building blocks” pertains to the notion of “illegal occupation” and to what extent this subcategory of “military occupation” constitutes a situation created or maintained in serious breach of jus cogens, making it subject to the aggravated responsibility regime for non-directly affected states under Articles 40–41 ARSIWA and international organisations under Draft Articles 41–42 DARIOWA.

1. Aim of the chapter – This third preliminary chapter turns to the question of which entities can be addressed to mitigate “potentially harmful private business activities in or pertaining to illegally occupied territories” – which we defined in the previous chapter as private business activities that entail a risk of rendering aid or assistance to the maintaining of illegal occupations (see supra Chapter 2, no 15). Overall, there are three possible competent actors, who – each at their own level – have a role to play in the process of providing an adequate regulation of potentially harmful business conduct in or pertaining to illegally occupied territories: (1) the “host state”, which, in situations of illegal occupation, refers to the ousted sovereign (“victim state”) and the occupying power; (2) the private businesses operating in or with regard to illegally occupied territories; and (3) the home state, which is the state of nationality of these private businesses. In the case of far-going attribution of economic competencies to international organisations – as is the case in the context of the EU – the home “state” may also be a competent (supranational) international organisation. When this book refers to “home state (regulation)”, it, thus, also includes (regulation by) such competent international organisations. Their “corporate nationals” are then considered business enterprises incorporated, domiciled or having their headquarters or main centre of activities in one of the member states of the said organisations.

The real environmental collapse endangering our existence and life on Earth has led most people to think about the future of mankind and to review various areas of our activities and institutions, to discover possible reserves and to allow the reduction of environmentally damaging externalities. This is the idea behind the Green Deal, one of the flagships of the European strategy for a better future, and the subsequent Circular Economy Action Plan. It is therefore understandable that private law has also become a natural space for critical review and the search for possible modifications of existing legal institutions to identify a scheme that can be modified to achieve some environmental savings.

The Sale of Goods Directive, the new directive on the consumer sale of goods, explicitly supports the principles of the circular economy (recital 32). Despite this innovative statement, the directive does not provide an overwhelming number of solutions for economic sustainability. It contains only one solution intended to support this particular purpose with respect to the issue of artificial obsolescence:5 the directive includes the notion of the objective requirements for conformity, and within those a durability requirement.

1. Aim of the chapter – The previous chapter has demonstrated that – besides the host state and the corporate actors – home states may play an essential role in tackling business activities of their corporate nationals that directly or indirectly render aid or assistance to the maintaining of illegal occupations. Building on this finding, the present chapter starts from the general premise that there is a need for home state regulation of potentially harmful private business activities in or pertaining to illegally occupied territories to complement the regulation of such activities by the “host states” – in casu the occupying power and, to a lesser extent, the ousted government (“victim state”) – and by corporations, which has often proved to be insufficient to, in and of themselves, provide a comprehensive framework to cope with the adverse effects of such business activities (see also supra Chapter 3, no 51). To underpin this premise, this chapter will explore the possible legal bases available under international law for such home state regulation. Two questions arise in this regard, which align with the two central research objectives of this chapter. The first one inquires to what extent international law permits home states to regulate potentially harmful private business activities in or pertaining to illegally occupied territories. Secondly, having established that international law de lege lata allows home state regulation of such activities (see infra, s 2), the analysis will be taken a step further and assess whether there is also an obligation incumbent on home states – and, by extension, competent international organisations – to do so. In this regard, the analysis will zoom in on different available legal avenues that have traditionally been advanced to substantiate the existence of mandatory home state regulation of potentially harmful business activities in or pertaining to illegally occupied territories.

Vulnerability is clearly one of the most common notions in the modern discourses on regulating contracts and market policy. They reached particular prominence in the EU digital market rules, where various forms of vulnerability arguments became a commonplace justification for intervention in horizontal market relations. All these arguments build on various versions of an assumption that market actors are a heterogenous group that demonstrates various degrees of proneness to certain risks and harm. In a nutshell, some of the participants in the market are more susceptible to certain practices or can incur a higher economic and personal loss. Consequently, the legal system should provide a diversified regulatory response that accounts for various forms and degrees of market disadvantage. Framed along these lines, the vulnerability-based arguments can be traced across various parts of the discussion about digital market and society – from state–citizen relations, to data protection and consumer law. More recently, vulnerability became a part of policy blueprints, playing a prominent role in the regulatory framework of the Digital Services Act (DSA) and product liability, and especially in the AI Act (with 25 mentions of vulnerability in one Act) that elevated it to one of the central positions in its rationale. In all these instances vulnerability is usually used as a generic notion that encapsulates various specific sources and types of human weakness in the digital realm. Each of these spheres develops, however, its own, mostly autonomous understanding of this term or sometimes, quite perplexingly, does not seem to develop any coherent understanding at all.

The words of the subject are very broad and I shall limit my introduction to a few remarks.

The notion of ‘constitutional values’ is not really a legal concept. The term ‘values’ itself does not often appear in legal texts, except in preambles or general statements. The concept is used in both singular1 and plural forms. Constitutions instead guarantee ‘rules’, ‘principles’, or ‘fundamental rights and freedoms’. However, law necessarily conveys an axiology, and fundamental rights thus refer to values protected by law. Still the term ‘values’ seems to be somewhat at odds with the notion of constitution, which is the text containing the common principles of a nation. In contrast, the word ‘values’ seems to refer to individual and subjective preferences, as we now live in a world where pluralism of values is accepted and guaranteed.

However, the adjective ‘constitutional’ certainly makes it possible to say that these are not only personal values, but collective and essential values – those that make up the identity of a nation.

The human driven1 global environmental crisis requires measures that are able to, if not reverse, at least mitigate, its speed, impact, negative effects, and future prospects for humanity. Based on the scientists’ claims regarding rising temperatures, rising sea levels, the disappearance of some species, the increasing droughts and decreasing amount of water availability for human consumption, to name a few, it may be too late to reverse the current situation so that we can ensure the viability of human civilisation on Earth in the way we know it.2 However, we still may have an opportunity to mitigate it so that we can slow down the impact of the environmental crisis and gain time to maintain human life and societies the way we know them.

With the growing involvement of the European Union (EU) in private law relationships since the late twentieth century, public regulation to control the operation of markets and traditional private law have become more and more intertwined. Recent accounts of European private law refer, for example, to ‘European regulatory private law’, ‘hybrid regulation of markets’ or the ‘integration of regulation into private law’. The hybridisation between market regulation and private law is particularly manifest in EU contract law, which regulates contractual relationships in the pursuit of public goals, notably the establishment of the European internal market. The EU legislator harnesses contract law concepts, such as information obligations or duties of care, as instruments to alleviate the market failure resulting from the information asymmetries between participants in a particular market or to achieve other policy outcomes.

1. Impact of transnational business activities on the lives of people living under occupation – While often remaining under the radar, private business activities have always played a significant role in the context of armed conflicts. It is no secret that belligerent parties heavily depend on corporations’ collaboration to carry out their military objectives, for example, by producing or supplying military equipment or raw materials. Vice versa, corporations have also often economically profited from the unsure, chaotic conditions that typify situations of armed conflict. This reality is no different for situations of (illegal) occupation. For instance, in its 2013 report, the independent international factfinding mission to investigate the implications of the Israeli settlements on the human rights of the Palestinian people demonstrated that “business enterprises have, directly and indirectly, enabled, facilitated and profited from the construction and growth of [illegal Israeli] settlements” in the OPT, which play a crucial role in Israel's strategy of prolonged occupation and annexation of the Palestinian territory.