Netherlands International Law Review最新文献

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.

The role of subsequent state practice in the procedural law of treaties, and in the determination of consent in the implementation of treaties have become the subject of much scholarly debate in recent times. The UN International Law Commission has devoted copious amounts of study time into these issues under the distinguished guidance of Georg Nolte as Special Rapporteur. Ph.D. theses and research monographs, journal articles and commentaries have appeared on the matter, but the debate persists. At one end of this debate are treaty-text loyalists that reject the potential of subsequent state practice to modify what they regard as ‘solemn oaths’ taken by states when they conclude and adopt a treaty. That ‘temporal declaration of consent’ by states to be bound by a treaty regime is for them sacrosanct. At the other end are analytical jurisprudence scholars who appear to insist upon a purpose test approach to the matter. This article evaluates treaty-text loyalists’ arguments under current state practice on treaty implementation across a number of disciplines. It shows that the view that ‘temporal consent’ supremely prohibits the modification of treaties through subsequent state practice is exaggerated. Moreover, the ‘solemn oaths’ perception of treaties is not supported by recent examples of treaty implementation.

While obligations erga omnes have increasingly been referred to in the jurisprudence, the legal consequences of those obligations are not adequately clarified in international law. Thus this article explores the legal effects of obligations erga omnes in general international law. After an examination of the criteria for the identification of obligations erga omnes, this article considers three possible legal consequences of those obligations: (1) the obligation not to recognize illegal situations, (2) third-party countermeasures, and (3) the locus standi of not directly injured States in response to a breach of obligations erga omnes. There is little doubt that the concept of obligations erga omnes is key in protecting the fundamental values and common interests of the international community as a whole or community interests. However, it cannot pass unnoticed that the legal effects of obligations erga omnes can be restricted by several factors. In this sense, it may have to be admitted that the concept of obligations erga omnes remains ambivalent as a means of protecting community interests in international law.