Kimberley N. Trapp
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199592999
- eISBN:
- 9780191729102
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592999.001.0001
- Subject:
- Law, Public International Law, Criminal Law and Criminology
The rules of State responsibility have an important but under-utilised role to play in the terrorism context. They determine both whether a breach of primary obligations has occurred, through the ...
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The rules of State responsibility have an important but under-utilised role to play in the terrorism context. They determine both whether a breach of primary obligations has occurred, through the rules of attribution, and the consequences which flow from that breach, including the possible adoption of responsive measures by injured States. This book explores the substantive international legal obligations and rules of State responsibility applicable to international terrorism and examines the problems and prospects for effectively holding States responsible for internationally wrongful acts related to terrorism. In particular, it analyses the way in which the implementation of State responsibility for international terrorism may be affected by the self-determination debate and any applicable lex specialis (including the jus in bello) and sub-systems of international law (including the WTO), as well as the interaction between determinations of individual criminal responsibility and the implementation of State responsibility. The international community has responded to the threat of international terrorism through both a security/jus ad bellum paradigm and by creating an international criminal law framework to address the conduct of non-State terrorist actors. The secondary rules of State responsibility analysed in this book cut across both approaches as they apply whether States breach their primary obligations relating to terrorism through participation in or a failure to prevent or punish terrorism. While this book identifies a number of problems in implementing State responsibility for international terrorism, it also highlights the prospects for the rules of State responsibility to make a crucial contribution to maintaining respect for obligations which lie at the very foundations of the contemporary international legal order, and to restoring the relationships between States if those obligations are breached.Less
The rules of State responsibility have an important but under-utilised role to play in the terrorism context. They determine both whether a breach of primary obligations has occurred, through the rules of attribution, and the consequences which flow from that breach, including the possible adoption of responsive measures by injured States. This book explores the substantive international legal obligations and rules of State responsibility applicable to international terrorism and examines the problems and prospects for effectively holding States responsible for internationally wrongful acts related to terrorism. In particular, it analyses the way in which the implementation of State responsibility for international terrorism may be affected by the self-determination debate and any applicable lex specialis (including the jus in bello) and sub-systems of international law (including the WTO), as well as the interaction between determinations of individual criminal responsibility and the implementation of State responsibility. The international community has responded to the threat of international terrorism through both a security/jus ad bellum paradigm and by creating an international criminal law framework to address the conduct of non-State terrorist actors. The secondary rules of State responsibility analysed in this book cut across both approaches as they apply whether States breach their primary obligations relating to terrorism through participation in or a failure to prevent or punish terrorism. While this book identifies a number of problems in implementing State responsibility for international terrorism, it also highlights the prospects for the rules of State responsibility to make a crucial contribution to maintaining respect for obligations which lie at the very foundations of the contemporary international legal order, and to restoring the relationships between States if those obligations are breached.
Helge Elisabeth Zeitler
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0006
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Clauses guaranteeing investor ‘full protection and security’ are included in most bilateral and multilateral investment treaties. They require not only abstention by the host State from physically ...
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Clauses guaranteeing investor ‘full protection and security’ are included in most bilateral and multilateral investment treaties. They require not only abstention by the host State from physically damaging foreign investment, but also positive measures to protect foreign investment, in particular against harm caused by private actors. This chapter shows the importance of and need for a comparative legal approach in order to understand what a guarantee of ‘full protection and security’ means today, in customary international law, but also in bilateral and multilateral investment treaties. It starts with an analysis of the origins of the clauses in customary international law and its importance for the understanding of their content under investment treaties, before analysing investment law jurisprudence on this basis. The applicable standard of protection in investment treaties is clarified in comparative perspective, in particular as regards human rights protection systems, with a view to developing general principles of law.Less
Clauses guaranteeing investor ‘full protection and security’ are included in most bilateral and multilateral investment treaties. They require not only abstention by the host State from physically damaging foreign investment, but also positive measures to protect foreign investment, in particular against harm caused by private actors. This chapter shows the importance of and need for a comparative legal approach in order to understand what a guarantee of ‘full protection and security’ means today, in customary international law, but also in bilateral and multilateral investment treaties. It starts with an analysis of the origins of the clauses in customary international law and its importance for the understanding of their content under investment treaties, before analysing investment law jurisprudence on this basis. The applicable standard of protection in investment treaties is clarified in comparative perspective, in particular as regards human rights protection systems, with a view to developing general principles of law.
Alan Brudner
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199207251
- eISBN:
- 9780191705502
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207251.003.0006
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
The question for discussion in this chapter is: under what substantive constraints can autonomous agents be penalized for a public welfare offence? The chapter offers a nonutilitarian justification ...
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The question for discussion in this chapter is: under what substantive constraints can autonomous agents be penalized for a public welfare offence? The chapter offers a nonutilitarian justification for dispensing with a subjective fault requirement for public welfare offences. It then derives from the real autonomy paradigm alternative constraints on penal action, namely, an injunction against strict liability, an injunction against imprisoning for negligent breaches of regulatory statutes, and a prescription for a general defence of nonnegligent ignorance of regulatory law. It concludes that the fair-opportunity-to-comply constraint on punishment that Hart proposed for the penal law as a whole properly applies only to public welfare offences.Less
The question for discussion in this chapter is: under what substantive constraints can autonomous agents be penalized for a public welfare offence? The chapter offers a nonutilitarian justification for dispensing with a subjective fault requirement for public welfare offences. It then derives from the real autonomy paradigm alternative constraints on penal action, namely, an injunction against strict liability, an injunction against imprisoning for negligent breaches of regulatory statutes, and a prescription for a general defence of nonnegligent ignorance of regulatory law. It concludes that the fair-opportunity-to-comply constraint on punishment that Hart proposed for the penal law as a whole properly applies only to public welfare offences.
Alan Brudner
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199207251
- eISBN:
- 9780191705502
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207251.003.0008
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor ...
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This chapter proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state's general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty theory, the conformity to moral expectation theory, and the suspension of law's threat theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The chapter argues that this theory would excuse the altruistic no less than the self-preferring murderer. It also offers a unifying explanation for the excusing force of entrapment, due diligence, and officially-induced error. Finally, it explains partial excuses as moral analogues of partial exculpations.Less
This chapter proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state's general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty theory, the conformity to moral expectation theory, and the suspension of law's threat theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The chapter argues that this theory would excuse the altruistic no less than the self-preferring murderer. It also offers a unifying explanation for the excusing force of entrapment, due diligence, and officially-induced error. Finally, it explains partial excuses as moral analogues of partial exculpations.
Helga Drummond
- Published in print:
- 1996
- Published Online:
- October 2011
- ISBN:
- 9780198289531
- eISBN:
- 9780191684722
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198289531.003.0010
- Subject:
- Business and Management, Organization Studies, HRM / IR
This chapter analyses events leading up to the decision made by the board of the London Stock Exchange (LSE) in the autumn of 1991 to allocate further funding to Project Taurus. This decision is ...
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This chapter analyses events leading up to the decision made by the board of the London Stock Exchange (LSE) in the autumn of 1991 to allocate further funding to Project Taurus. This decision is especially interesting because in retrospect, some people close to the project felt that it should have been stopped. This chapter examines why the decision-makers persisted and whether such persistence was a rational response to circumstances. According to the decision dilemma theory, withdrawal is logical when it becomes clear that decision-makers' expectations will not be met. The project was not stopped in 1991 despite considerable negative feedback. Once it becomes clear that expectations will not be met, persistence is dictated by psychological and social pressures coming into play sequentially. The root of escalation in decision-making, escalation as the observance of due diligence, and the actions of other players, including the market and the Taurus monitoring group, are considered.Less
This chapter analyses events leading up to the decision made by the board of the London Stock Exchange (LSE) in the autumn of 1991 to allocate further funding to Project Taurus. This decision is especially interesting because in retrospect, some people close to the project felt that it should have been stopped. This chapter examines why the decision-makers persisted and whether such persistence was a rational response to circumstances. According to the decision dilemma theory, withdrawal is logical when it becomes clear that decision-makers' expectations will not be met. The project was not stopped in 1991 despite considerable negative feedback. Once it becomes clear that expectations will not be met, persistence is dictated by psychological and social pressures coming into play sequentially. The root of escalation in decision-making, escalation as the observance of due diligence, and the actions of other players, including the market and the Taurus monitoring group, are considered.
William M Gordon
- Published in print:
- 2007
- Published Online:
- September 2012
- ISBN:
- 9780748625161
- eISBN:
- 9780748671571
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748625161.003.0017
- Subject:
- Law, Legal History
The high regard in which Bell is held is generally based on his Commentaries and Principles but he had an important role in the extensive programme of law reform which took place over the nineteenth ...
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The high regard in which Bell is held is generally based on his Commentaries and Principles but he had an important role in the extensive programme of law reform which took place over the nineteenth century and beyond. His first involvement was with the Court of Session and the Jury Court in the 1820s but his major work was on a Commission set up in 1833 and finally expiring in 1839. Through its Reports it was ultimately responsible for a stream of legislation on diligence, the Court of Session, the Sheriff Courts and conveyancing. Investigation of its work underlines the vast material relevant to legal history to be found in Parliamentary Papers.Less
The high regard in which Bell is held is generally based on his Commentaries and Principles but he had an important role in the extensive programme of law reform which took place over the nineteenth century and beyond. His first involvement was with the Court of Session and the Jury Court in the 1820s but his major work was on a Commission set up in 1833 and finally expiring in 1839. Through its Reports it was ultimately responsible for a stream of legislation on diligence, the Court of Session, the Sheriff Courts and conveyancing. Investigation of its work underlines the vast material relevant to legal history to be found in Parliamentary Papers.
Benjamin Kelly
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199599615
- eISBN:
- 9780191731525
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599615.003.0003
- Subject:
- Classical Studies, European History: BCE to 500CE
This chapter argues that the structural features and ideological context of the legal system of Roman Egypt made it unlikely that many petitions would have ended in firm judgments which were then ...
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This chapter argues that the structural features and ideological context of the legal system of Roman Egypt made it unlikely that many petitions would have ended in firm judgments which were then successfully enforced. This was the consequence of an overly complicated legal system, which had a large number of adjudicative officials with substantially overlapping jurisdictions. The system was prone to delays and open to abuse and obfuscation by litigants who wanted to delay the progress of a case. As far as we can tell, individual officials mostly discharged their duties at any given stage with efficiency and in accordance with the bureaucratic ideology of the province, which stressed diligence, propriety, and rationality. But this ideology slowed the processing of cases.Less
This chapter argues that the structural features and ideological context of the legal system of Roman Egypt made it unlikely that many petitions would have ended in firm judgments which were then successfully enforced. This was the consequence of an overly complicated legal system, which had a large number of adjudicative officials with substantially overlapping jurisdictions. The system was prone to delays and open to abuse and obfuscation by litigants who wanted to delay the progress of a case. As far as we can tell, individual officials mostly discharged their duties at any given stage with efficiency and in accordance with the bureaucratic ideology of the province, which stressed diligence, propriety, and rationality. But this ideology slowed the processing of cases.
David A. Weir
- Published in print:
- 1990
- Published Online:
- October 2011
- ISBN:
- 9780198266907
- eISBN:
- 9780191683107
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198266907.003.0007
- Subject:
- Religion, Theology, History of Christianity
The overwhelming predominance of the federal theology in Puritan thinking and Puritanism's emphasis on duty must have something to do with the ‘Puritan-Presbyterian character’, with its emphasis upon ...
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The overwhelming predominance of the federal theology in Puritan thinking and Puritanism's emphasis on duty must have something to do with the ‘Puritan-Presbyterian character’, with its emphasis upon diligence, duty, and discipline. However, the seeds of the federal theology are not to be found in ethics or morals; it only affected these areas. Its origin and rise must be seen within the context of the flow of the history of Reformed theology in the 16th and 17th centuries. Two questions plagued the Reformed Churches of Europe and later of New England: the question of predestination and the question of the sacraments. It is out of the questions concerning predestination that the federal theology flowed, for one of the great themes of the 16th-century intellectual thought is that of theodicy.Less
The overwhelming predominance of the federal theology in Puritan thinking and Puritanism's emphasis on duty must have something to do with the ‘Puritan-Presbyterian character’, with its emphasis upon diligence, duty, and discipline. However, the seeds of the federal theology are not to be found in ethics or morals; it only affected these areas. Its origin and rise must be seen within the context of the flow of the history of Reformed theology in the 16th and 17th centuries. Two questions plagued the Reformed Churches of Europe and later of New England: the question of predestination and the question of the sacraments. It is out of the questions concerning predestination that the federal theology flowed, for one of the great themes of the 16th-century intellectual thought is that of theodicy.
Lokke Moerel
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199662913
- eISBN:
- 9780191746208
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199662913.003.0011
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter considers Binding Corporate Rules (BCR) as a form of Corporate Social Responsibility (CSR). It discusses to what extent data protection is covered by international soft law instruments ...
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This chapter considers Binding Corporate Rules (BCR) as a form of Corporate Social Responsibility (CSR). It discusses to what extent data protection is covered by international soft law instruments that set guidelines for CSR, and if so, whether these have any repercussions for the BCR regime. This requires a discussion of human rights regulation, not so much in the context of whether these may be regulated by self-regulation, but whether the international instruments on CSR require that fundamental rights held by individuals should be viewed as imposing duties directly on multinationals, even for activities of these multinationals in countries that do not recognize such human rights.Less
This chapter considers Binding Corporate Rules (BCR) as a form of Corporate Social Responsibility (CSR). It discusses to what extent data protection is covered by international soft law instruments that set guidelines for CSR, and if so, whether these have any repercussions for the BCR regime. This requires a discussion of human rights regulation, not so much in the context of whether these may be regulated by self-regulation, but whether the international instruments on CSR require that fundamental rights held by individuals should be viewed as imposing duties directly on multinationals, even for activities of these multinationals in countries that do not recognize such human rights.
Stefan Trechsel
- Published in print:
- 2006
- Published Online:
- February 2010
- ISBN:
- 9780199271207
- eISBN:
- 9780191709623
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271207.003.0019
- Subject:
- Law, Criminal Law and Criminology, Human Rights and Immigration
When it comes to the special rights of persons detained on remand, the European Convention on Human Rights (ECHR) refers to Article 5 section 1(c), while the International Covenant on Civil and ...
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When it comes to the special rights of persons detained on remand, the European Convention on Human Rights (ECHR) refers to Article 5 section 1(c), while the International Covenant on Civil and Political Rights (ICCPR) speaks of ‘on a criminal charge’, although the arrestee is not necessarily charged yet at the time of arrest. This chapter discusses the justification of special safeguards for those detained on remand, the right to be brought before a judge, the purpose and character of the right, the judge or other officer authorised by law to exercise judicial power, the independence and impartiality of the authority, the power to order release, the procedure before the judge, the relevance or irrelevance of situations of emergency, the limitation in time of detention on remand, criteria of reasonableness, grounds which are not relevant or sufficient to justify the continued detention, ‘special diligence’ and the conduct of the criminal proceedings, release on bail, and possibility of redress.Less
When it comes to the special rights of persons detained on remand, the European Convention on Human Rights (ECHR) refers to Article 5 section 1(c), while the International Covenant on Civil and Political Rights (ICCPR) speaks of ‘on a criminal charge’, although the arrestee is not necessarily charged yet at the time of arrest. This chapter discusses the justification of special safeguards for those detained on remand, the right to be brought before a judge, the purpose and character of the right, the judge or other officer authorised by law to exercise judicial power, the independence and impartiality of the authority, the power to order release, the procedure before the judge, the relevance or irrelevance of situations of emergency, the limitation in time of detention on remand, criteria of reasonableness, grounds which are not relevant or sufficient to justify the continued detention, ‘special diligence’ and the conduct of the criminal proceedings, release on bail, and possibility of redress.
Jeremy Horder
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199225781
- eISBN:
- 9780191715174
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199225781.003.0001
- Subject:
- Law, Criminal Law and Criminology
This introductory chapter begins with a brief discussion of the purpose of the book, which is to explore in depth the theoretical underpinning of existing excuses, and through such exploration ...
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This introductory chapter begins with a brief discussion of the purpose of the book, which is to explore in depth the theoretical underpinning of existing excuses, and through such exploration calling into question the rationale for the restricted range of such excuses in most legal systems. The book argues in favour of three excuses that currently have, at best, only limited or partial recognition in criminal law: ‘diminished capacity’, ‘due diligence’, and ‘demands of conscience’ excuses. An overview of the subsequent chapters is presented.Less
This introductory chapter begins with a brief discussion of the purpose of the book, which is to explore in depth the theoretical underpinning of existing excuses, and through such exploration calling into question the rationale for the restricted range of such excuses in most legal systems. The book argues in favour of three excuses that currently have, at best, only limited or partial recognition in criminal law: ‘diminished capacity’, ‘due diligence’, and ‘demands of conscience’ excuses. An overview of the subsequent chapters is presented.
Kimberley N. Trapp
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199592999
- eISBN:
- 9780191729102
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592999.003.0003
- Subject:
- Law, Public International Law, Criminal Law and Criminology
Chapter 3 examines the customary and treaty obligations to prevent international terrorism with a view to identifying both the scope of due diligence required for compliance and any difficulties with ...
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Chapter 3 examines the customary and treaty obligations to prevent international terrorism with a view to identifying both the scope of due diligence required for compliance and any difficulties with assessing non-compliance. It further explores the treaty obligations to extradite or submit terrorist actors to prosecution, and considers the possibility of concurrent individual and State responsibility for terrorism through an examination of the applicability of State immunity to terrorism prosecutions. Finally, Chapter 3 assesses the impact of the self-determination debate on the scope of the international terrorism suppression conventions through an analysis of their exclusion clauses. In particular, Chapter 3 treats the proposed distinction between terrorism and self-determination as a question of regime interaction between humanitarian law and the criminal law enforcement conventions applicable to international terrorism.Less
Chapter 3 examines the customary and treaty obligations to prevent international terrorism with a view to identifying both the scope of due diligence required for compliance and any difficulties with assessing non-compliance. It further explores the treaty obligations to extradite or submit terrorist actors to prosecution, and considers the possibility of concurrent individual and State responsibility for terrorism through an examination of the applicability of State immunity to terrorism prosecutions. Finally, Chapter 3 assesses the impact of the self-determination debate on the scope of the international terrorism suppression conventions through an analysis of their exclusion clauses. In particular, Chapter 3 treats the proposed distinction between terrorism and self-determination as a question of regime interaction between humanitarian law and the criminal law enforcement conventions applicable to international terrorism.
Barbara A. Frey
- Published in print:
- 2021
- Published Online:
- September 2021
- ISBN:
- 9780197267226
- eISBN:
- 9780191953866
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197267226.003.0003
- Subject:
- Law, Human Rights and Immigration
Enforced disappearance is one of the most serious crimes, prohibited across several regimes of international law, including human rights, humanitarian law and criminal law, yet Latin American ...
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Enforced disappearance is one of the most serious crimes, prohibited across several regimes of international law, including human rights, humanitarian law and criminal law, yet Latin American governments and officials frequently avoid legal accountability for these violations. The dynamics of disappearances in post-transitional democracies call for a reconceptualisation of the international human rights framework, by reconsidering the meaning of state acquiescence. This chapter argues that a relevant and effective framework must embrace a contextual analysis and foreground the positive obligations of states to search and investigate these crimes, using generally accepted principles found in due diligence jurisprudence to measure the legal adequacy of the state’s responses to reported disappearances. Stretching the legal framework is necessary to disrupt the benefits of impunity, which violate the rights of victims, allow disappearances to thrive, and harm societies by hiding the truth.Less
Enforced disappearance is one of the most serious crimes, prohibited across several regimes of international law, including human rights, humanitarian law and criminal law, yet Latin American governments and officials frequently avoid legal accountability for these violations. The dynamics of disappearances in post-transitional democracies call for a reconceptualisation of the international human rights framework, by reconsidering the meaning of state acquiescence. This chapter argues that a relevant and effective framework must embrace a contextual analysis and foreground the positive obligations of states to search and investigate these crimes, using generally accepted principles found in due diligence jurisprudence to measure the legal adequacy of the state’s responses to reported disappearances. Stretching the legal framework is necessary to disrupt the benefits of impunity, which violate the rights of victims, allow disappearances to thrive, and harm societies by hiding the truth.
Francesco Francioni
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199604555
- eISBN:
- 9780191725180
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199604555.003.0006
- Subject:
- Law, Public International Law, Human Rights and Immigration
This chapter argues that international human rights law offers a rational basis for the construction of a general due diligence obligation of home states of private military and security companies ...
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This chapter argues that international human rights law offers a rational basis for the construction of a general due diligence obligation of home states of private military and security companies (PMSCs) to prevent, minimise, and remedy human rights violations by these companies, including violations connected to the export of their services. This conclusion is reached based on legal analysis of the content and structure of relevant human rights obligations, is supported by an evolutive interpretation of the rules of attribution of wrongful acts under the law of state responsibility, and is consistent with a policy perspective in which PMSCs' transnational operations are increasingly dependant on public procurement ties that these companies maintain with the states where they are based.Less
This chapter argues that international human rights law offers a rational basis for the construction of a general due diligence obligation of home states of private military and security companies (PMSCs) to prevent, minimise, and remedy human rights violations by these companies, including violations connected to the export of their services. This conclusion is reached based on legal analysis of the content and structure of relevant human rights obligations, is supported by an evolutive interpretation of the rules of attribution of wrongful acts under the law of state responsibility, and is consistent with a policy perspective in which PMSCs' transnational operations are increasingly dependant on public procurement ties that these companies maintain with the states where they are based.
Guido den Dekker and Eric PJ Myjer
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199604555
- eISBN:
- 9780191725180
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199604555.003.0010
- Subject:
- Law, Public International Law, Human Rights and Immigration
This chapter is concerned with the right to life of private military and security contractors and its protection though personal self-defence in armed conflict. After analysing the right to life, and ...
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This chapter is concerned with the right to life of private military and security contractors and its protection though personal self-defence in armed conflict. After analysing the right to life, and self-defence, in international human rights, humanitarian, and criminal law, it argues that private contractors cannot be denied through their contracts a right to carry and use firearms for lawful self-defence when the fulfillment of the contract in the operational area is life-threatening. If that situation is foreseeable or known to arrive, states can fulfill a ‘due diligence’ obligation to prevent unlawful, arbitrary killing of private contractors by allowing them arms for defensive purposes not amounting to a direct participation in the hostilities. However, the same considerations as well as the state monopoly on the use of force imply that states should in fact refrain from outsourcing tasks which require private contractors to be armed.Less
This chapter is concerned with the right to life of private military and security contractors and its protection though personal self-defence in armed conflict. After analysing the right to life, and self-defence, in international human rights, humanitarian, and criminal law, it argues that private contractors cannot be denied through their contracts a right to carry and use firearms for lawful self-defence when the fulfillment of the contract in the operational area is life-threatening. If that situation is foreseeable or known to arrive, states can fulfill a ‘due diligence’ obligation to prevent unlawful, arbitrary killing of private contractors by allowing them arms for defensive purposes not amounting to a direct participation in the hostilities. However, the same considerations as well as the state monopoly on the use of force imply that states should in fact refrain from outsourcing tasks which require private contractors to be armed.
Charlotte Beaucillon, Julian Fernandez, and Hélène Raspail
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199604555
- eISBN:
- 9780191725180
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199604555.003.0021
- Subject:
- Law, Public International Law, Human Rights and Immigration
This chapter discusses the circumstances under which states can be held accountable for a breach of the ius ad bellum, when the acts in question were performed by a private military and security ...
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This chapter discusses the circumstances under which states can be held accountable for a breach of the ius ad bellum, when the acts in question were performed by a private military and security company (PMSC). The definition of the ius ad bellum itself is reconsidered as a corpus of norms, including a prohibition of the use of force but also encompassing obligations to prevent this use of force by private actors such as PMSCs. This lato sensu definition may lead to a recognition of state responsibility irrespective of whether or not the acts of private contractors are attributable to the state. It is argued that when a state cannot be held accountable for the violation of ius ad bellum stricto sensu by a PMSC, as a next step in determining state responsibility, respect of the due diligence principle needs to be examined. Moreover, states may have a duty to harmonise their national legal systems in order to prevent ius ad bellum violations by private actors.Less
This chapter discusses the circumstances under which states can be held accountable for a breach of the ius ad bellum, when the acts in question were performed by a private military and security company (PMSC). The definition of the ius ad bellum itself is reconsidered as a corpus of norms, including a prohibition of the use of force but also encompassing obligations to prevent this use of force by private actors such as PMSCs. This lato sensu definition may lead to a recognition of state responsibility irrespective of whether or not the acts of private contractors are attributable to the state. It is argued that when a state cannot be held accountable for the violation of ius ad bellum stricto sensu by a PMSC, as a next step in determining state responsibility, respect of the due diligence principle needs to be examined. Moreover, states may have a duty to harmonise their national legal systems in order to prevent ius ad bellum violations by private actors.
Timothy Galpin
- Published in print:
- 2020
- Published Online:
- October 2020
- ISBN:
- 9780198858560
- eISBN:
- 9780191890727
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198858560.001.0001
- Subject:
- Business and Management, Strategy
Winning at the Acquisition Game is a collection of the best materials, insights, tools, and templates which comprise the popular Mergers and Acquisitions course taught in the MBA and Executive MBA ...
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Winning at the Acquisition Game is a collection of the best materials, insights, tools, and templates which comprise the popular Mergers and Acquisitions course taught in the MBA and Executive MBA programs at the Saïd Business School, University of Oxford. Each chapter provides readers with practical knowledge and tools to help them understand the entire mergers and acquisitions (M&A) process from pre-deal strategy and due diligence, through transaction valuation, negotiations, and closing, to post-deal implementation, workforce motivation, innovation for revenue growth, and results measurement and reporting. As a result, readers will gain valuable insights into the entire M&A process, from beginning to end, connecting traditionally distinct, “siloed” functional expertise across the process. Case examples in the chapters describe how each stage of the process has been implemented by companies across various industries. Each chapter concludes with a set of discussion questions and a self-assessment that readers can use to determine their firm’s current level of M&A capability. Practical frameworks, tools, and templates are also provided in an “M&A Workbook” that readers can apply to their own transactions, now or in the future.Less
Winning at the Acquisition Game is a collection of the best materials, insights, tools, and templates which comprise the popular Mergers and Acquisitions course taught in the MBA and Executive MBA programs at the Saïd Business School, University of Oxford. Each chapter provides readers with practical knowledge and tools to help them understand the entire mergers and acquisitions (M&A) process from pre-deal strategy and due diligence, through transaction valuation, negotiations, and closing, to post-deal implementation, workforce motivation, innovation for revenue growth, and results measurement and reporting. As a result, readers will gain valuable insights into the entire M&A process, from beginning to end, connecting traditionally distinct, “siloed” functional expertise across the process. Case examples in the chapters describe how each stage of the process has been implemented by companies across various industries. Each chapter concludes with a set of discussion questions and a self-assessment that readers can use to determine their firm’s current level of M&A capability. Practical frameworks, tools, and templates are also provided in an “M&A Workbook” that readers can apply to their own transactions, now or in the future.
Heike Krieger, Anne Peters, and Leonhard Kreuzer (eds)
- Published in print:
- 2020
- Published Online:
- February 2021
- ISBN:
- 9780198869900
- eISBN:
- 9780191912771
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198869900.001.0001
- Subject:
- Law, Company and Commercial Law, Public International Law
Due diligence is a prominent concept in international law. Still, for long, its role seemed to be that of a familiar stranger. Frequent referrals to the concept in arbitral awards, court decisions, ...
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Due diligence is a prominent concept in international law. Still, for long, its role seemed to be that of a familiar stranger. Frequent referrals to the concept in arbitral awards, court decisions, and in scholarly discussions mostly on state responsibility hide the fact that the specific normative content and systemic relation of due diligence to rules and principles of international law has largely remained unexplored. The present book provides the first comprehensive analysis of the content, scope, and function of due diligence across various areas of international law, including international environmental law, international peace and security law, and international economic law. Sector by sector, contributors explore the diverse interactions between due diligence and area-specific substantive and procedural rules as well as general principles of international law. The book exposes the promises and limits of due diligence for enhancing accountability and compliance and identifies the rise of due diligence as a signal for change in the international legal order towards risk management and proceduralisation.Less
Due diligence is a prominent concept in international law. Still, for long, its role seemed to be that of a familiar stranger. Frequent referrals to the concept in arbitral awards, court decisions, and in scholarly discussions mostly on state responsibility hide the fact that the specific normative content and systemic relation of due diligence to rules and principles of international law has largely remained unexplored. The present book provides the first comprehensive analysis of the content, scope, and function of due diligence across various areas of international law, including international environmental law, international peace and security law, and international economic law. Sector by sector, contributors explore the diverse interactions between due diligence and area-specific substantive and procedural rules as well as general principles of international law. The book exposes the promises and limits of due diligence for enhancing accountability and compliance and identifies the rise of due diligence as a signal for change in the international legal order towards risk management and proceduralisation.
Radha Ivory
- Published in print:
- 2020
- Published Online:
- February 2021
- ISBN:
- 9780198869900
- eISBN:
- 9780191912771
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198869900.003.0017
- Subject:
- Law, Company and Commercial Law, Public International Law
This chapter describes and problematises the role of due diligence norms in international anti-corruption and money laundering law. It analyses the international legal framework against the abuse of ...
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This chapter describes and problematises the role of due diligence norms in international anti-corruption and money laundering law. It analyses the international legal framework against the abuse of trust or power for private gain—corruption—and finds that states are obliged to prevent the perpetration or facilitation of such conduct by non-state actors. The chapter demonstrates that, to this end, states must ‘responsibilise’ legal entities and require supervision by those entities of other non-state actors. Both horizontal (state-to-state) and traversal (state-to-business) anti-corruption due diligence obligations are calibrated by discretions and notions of risk. The chapter points out that the international economic crime standards seem to employ a ‘new’ approach to governance or—more problematically—to diffuse ‘new’ forms of ‘penality’ or global governmentality.Less
This chapter describes and problematises the role of due diligence norms in international anti-corruption and money laundering law. It analyses the international legal framework against the abuse of trust or power for private gain—corruption—and finds that states are obliged to prevent the perpetration or facilitation of such conduct by non-state actors. The chapter demonstrates that, to this end, states must ‘responsibilise’ legal entities and require supervision by those entities of other non-state actors. Both horizontal (state-to-state) and traversal (state-to-business) anti-corruption due diligence obligations are calibrated by discretions and notions of risk. The chapter points out that the international economic crime standards seem to employ a ‘new’ approach to governance or—more problematically—to diffuse ‘new’ forms of ‘penality’ or global governmentality.
Donald Nicolson and Julian Webb
- Published in print:
- 2000
- Published Online:
- March 2012
- ISBN:
- 9780198764717
- eISBN:
- 9780191695261
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198764717.003.0005
- Subject:
- Law, Legal Profession and Ethics
This chapter discusses how the ethics of loyalty between the lawyer and his or her client usually undermines the client's autonomy and increase in the control of the lawyer. There are three major ...
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This chapter discusses how the ethics of loyalty between the lawyer and his or her client usually undermines the client's autonomy and increase in the control of the lawyer. There are three major aspects of lawyer-client relationships: first is the when the lawyers control their client for their own self-interest. Second is when lawyers use their control for the client's interest, and third is when clients seek to exercise their control over their lawyers. To maintain a strong ethical standard amidst these various relationships it is important to have a strong bond of trust and good faith between the lawyer and the client. Values such as diligence, integrity and informed consent from the client are important to maintain a healthy and ethical relationship.Less
This chapter discusses how the ethics of loyalty between the lawyer and his or her client usually undermines the client's autonomy and increase in the control of the lawyer. There are three major aspects of lawyer-client relationships: first is the when the lawyers control their client for their own self-interest. Second is when lawyers use their control for the client's interest, and third is when clients seek to exercise their control over their lawyers. To maintain a strong ethical standard amidst these various relationships it is important to have a strong bond of trust and good faith between the lawyer and the client. Values such as diligence, integrity and informed consent from the client are important to maintain a healthy and ethical relationship.
