With the increasing application of artificial intelligence and autonomy in cyberspace, there is little doubt that “autonomous cyber capabilities” (ACC) – software agents that are programmed to carry out specific tasks through cyberspace without real-time human control or oversight – will be deployed in future armed conflicts. Yet, ACC’s lack of real-time human control and the risk of unpredictable, unreliable and unexplainable behaviour raise important concerns as to their use in compliance with international humanitarian law (IHL). This article explores whether due diligence may be a valuable framework to mitigate the risks associated with ACC and avoid unintended violations of IHL. Notably, it contends that due diligence is a chapeau obligation for several IHL norms that require States to undertake all appropriate measures to ensure the development and use of ACC in compliance with IHL, and it provides examples of diligent measures that States shall adopt.

Alors que les violations des droits des travailleurs ont été à l’origine du processus de juridicisation de la responsabilité sociale des entreprises (RSE) dont l’ultime étape a été de fonder la responsabilité juridique des entreprises donneuses d’ordres et sociétés mères, aucune allusion n’y est faite dans le texte de l’emblématique loi française du 27 mars 2017. Cette invisibilisation du travail s’est doublée de silences et d’ambiguïtés sur le rôle des représentants des travailleurs dans le processus de corégulation au cœur duquel se trouve le plan de vigilance. C’est pourquoi les syndicats ont dû s’imposer aux entreprises en utilisant les ressources de la loi de 2017 et des normes internationales de RSE pour faire reconnaitre leur légitimité à être associé comme partie prenante soit via la saisine du juge soit par la négociation collective transnationale.

This article is about state responsibility and its unique interaction with environmental law. While remedies in the main are reparative in nature, the ‘guarantees of non-repetition’ are qualitatively distinct, intended to prevent recurrence of a breach and, as such, this remedy brings added value to environmental law. Utilizing the Montara oil spill as a conceptual testing ground, this article argues that the future-oriented guarantees of non-repetition create an untapped opportunity for an injured state. Benefiting from the leverage attached to receiving guarantees of non-repetition, an injured state may evoke the International Law Commission’s Articles on Prevention of Transboundary Harm to negotiate future prevention and, where it sees fit, to seek to institutionalize future oversight by various joint-monitoring mechanisms, going so far as to call for a bilateral intergovernmental organization.

This article examines the legal foundations of an equitable global fossil fuel phase-out under international law and considers how legal principles could shape the scope of existing obligations and development of a future regime limiting the production of fossil fuels. While fossil fuel production remains largely unregulated in the international climate regime, emerging scientific, political and normative pressures demand clearer legal guidance. The article argues that a principle-based approach, grounded in established norms of international law, can clarify what equity entails in this context, and offer a coherent framework for a managed phase-out. Drawing on principles of permanent sovereignty over natural resources, common but differentiated responsibilities, cooperation, prevention, precaution and non-regression, it is demonstrated that the substantive and procedural obligations needed for an equitable transition away from fossil fuels are already part of existing international law.

Current scholarship often views international environmental law (IEL) through a crisis or ambition lens. The “crisis lens” apologizes for the limitations of doctrinal methods in resolving disputes. The “ambition lens” seeks to align IEL with a planetary perspective but is criticized for utopianism. We offer a social-systems-theoretical alternative. IEL’s ability to learn and adapt to social change also depends on sustaining law’s function of stabilizing expectations. This constitutes the core of Luhmann’s theory of operative closure. We devise three hypotheses to reconstruct IEL’s operative closure and apply them to the South China Sea. Hypothesis 1: Environmental impact assessment norms address the problem of contingency management. Hypothesis 2: Due diligence norms address the problem of confidence maintenance. Hypothesis 3: Cooperation norms address the problem of trust retention. Our analysis shows that reconstructing IEL’s operative closure reveals its societal responsiveness. This presents a new critical lens for observing IEL’s social phenomena.

International humanitarian law (IHL) has been under immense pressure in the past few years. Despite IHL being created to mitigate suffering in armed conflicts, in recent years it has been leveraged by some as a means of justifying violence against civilians under the guise of proportionate incidental loss. With IHL lacking organic international accountability mechanisms, some States have “gamed” the rules of this body of law, resulting in military operations causing the deaths of tens of thousands of civilians that are defended as legally justifiable. Such arguments are a far cry from the original founding impetus of IHL, based on Dunant’s idea of humanity as “a kind of energy which gives one a positive craving to relieve as many as one can”. In this article, we argue that to re-emphasize humanity, it might be necessary to focus on other means of accounting for civilian harm, whether it is lawful or unlawful. Traditionally, criminal prosecutions have punished grave breaches of IHL or war crimes, neglecting the place of redress. Other bodies of international law, such as international human rights law, have expanded litigation possibilities for individual civilian harm in armed conflict at both the domestic and international level. Many of these cases have helped shape the key components of human rights law and have provided a strong incentive for States to ensure rights, protect victims and prevent future violations. Yet lawful civilian harm, where States find that incidental civilian loss is not excessive in relation to the military advantage gained, may provide no legal avenue to a claim of a violation of IHL or human rights law.

If IHL is considered from a civil (delict/tort) litigation and operational perspective, it can better recognize the agency of civilians and can be an avenue to respond to their harm and mitigate its repetition in military operations. It can also bolster the precautionary principle of militaries taking “constant care” to spare the civilian population from the ravages of armed conflict. This can be seen in the US and Dutch militaries adopting civilian harm mitigation and response (CHMR) action plans that go beyond IHL compliance and see civilian harm as also a moral and strategic concern. The increasing use of both civil litigation and operational CHMR is, we argue, representative of an increasing trend to uphold humanity in line with the spirit and purpose of IHL. We outline how this can be embedded in the operationalization of the principle of precaution and the duty of constant care as an obligation of due diligence to redress civilian harm, whether lawful or unlawful, as a basic tenet of humanity in war.

Some fishing vessels breach maritime laws by operating with their mandatory tracking systems (Automatic Identification System (AIS)) switched off. Marine insurers act as enablers of this practice since these vessels cannot operate without insurance. This article explores why insurers in England take on the risk of insuring them and assesses how the insurers are operating against the regulatory framework in doing so. It identifies the solutions that could raise standards in marine insurance and lead to increased legal compliance by the insured vessels. This would consequently enhance maritime safety, while increasing transparency in fisheries across all oceans. Importantly, by discouraging vessels from going dark, any illegal activities underlying the non-transmission of AIS data, such as human, drug or weapon trafficking, illegal fishing or sanctions evasion, would also be curbed.

The outbreak and continuation of armed hostilities can sometimes cause harm to bordering States not directly involved in the hostilities. This has occurred in many military operations conducted during the last few decades. The scope of the provisions relating to the protection of the environment during armed conflict appears to be strictly limited to the territory in which the operations are taking place. It is therefore important to determine the extent to which a belligerent State at the origin of acts that have had devastating consequences on the territory of one or more States not involved in the conflict can be held internationally responsible for those acts based on the principle of international liability for injurious consequences arising out of acts not prohibited by international law, which is still under discussion. The argument put forward in this article is based on the hypothesis that this principle is at least implicitly recognized when it comes to environmental damage caused in the context of an armed conflict. In our view, this is grounded both in the principle of the inviolability of neutral States and in the no-harm principle, whereby a State cannot use its territory in a way that is harmful to other States not involved in the armed conflict. These principles are based on the notions of fault and risk.

In international human rights law, the notion of due diligence concerns a qualifier of behaviour to realize human rights protection, including the protection against non-state actor interferences. However, the question remains what due diligence obligations of states in the context of non-state actor interferences exactly entail in international human rights law. The present article aims to address this matter by comparing case law of the European Court of Human Rights (ECtHR) with that of the Inter-American Court of Human Rights (IACtHR). Using a working model of due diligence that has been introduced in recent scholarly work, this article further explores this model and attempts to give further meaning to its two paradigms: ‘regulation’ and ‘risk management’. In that way, it maps out the relevant elements of this foundational concept that lies at the heart of human rights protection.