Title PhD
Regulating private business activities in illegally occupied territories by imposing due diligence obligations on home states: the duties of non-recognition and non-assistance.
Research field/ discipline
Public international law, law of military occupation, state responsibility law, Business and Human Rights.
Introduction PhD
How imposing a positive due diligence obligation on home states in light of their duties of non-recognition and non-assistance may contribute to a better regulation of private business activities in illegally occupied territories, constituting serious breaches of peremptory international law.
Abstract
The research project is prompted by the constatation that by operating in illegally occupied territories, private businesses play a significant role in the continuation and consolidation of illegal occupations, which constitute serious violations of several jus cogens norms that uphold the integrity of the international legal order. However, international law as it stands today provides little options for holding private corporate actors legally accountable for their activities in illegally occupied territories. This is inter alia due to the lack of directly binding obligations on the part of businesses in this regard and the fact that private conduct is seldom attributable to states under the laws governing basic state responsibility. Furthermore, private businesses are - contrary to non-directly affected third states - not bound by the customary duties of non-recognition and non-assistance in case of serious violations of jus cogens, which only govern inter-governmental relations and not private entities' interactions with states. This creates a legal vacuum in the protection of the local population under illegal occupation and paves the way for businesses to profit from normalised breaches of peremptory international law.
Various breaches of international law, such as international human rights law, international humanitarian law, international environmental law and international law of the sea, struggle with similar legal questions on how to approach extraterritorial activities of businesses and are currently experimenting with the option of imposing due diligence obligations upon the businesses' states of nationality (home states). Due to the existing bond of nationality, home states are indeed responsible to ensure that their corporate nationals do not violate international law, both on their territory and when acting abroad. Inspired by this emerging trend to have extraterritorial conduct of businesses regulated by their home states through the concept of due diligence, the central research aim of this PhD research project is to test whether the findings on due diligence and extraterritorial conduct of private businesses in the above-mentioned areas of international law can be transposed mutatis mutandis to the context of the duties of non-recognition and non-assistance, given their substantial resemblance with the central research issue of this project.
The PhD will thus inquire whether the home states' duties of non-recognition and non-assistance should include positive, due diligence obligations. These obligations would hence not only oblige home states not to recognise situations, breaching norms of jus cogens, but also to take all necessary measures to ensure that their corporate nationals do not contribute to maintaining these illegal occupations by engaging in business activities in illegally occupied territories. Furthermore, this project will provide an in-depth assessment of how to operationalise such positive obligations relying upon domestic processes, given that extraterritorial jurisdiction is curtailed under international law.
By introducing this novel, positive reading of the duties of non-recognition and non-assistance, this PhD aims to establish an innovative legal framework compelling states to tackle problematic business activities in illegally occupied territories and provide concrete guidelines to policymakers, law practitioners, businesses and NGOs on how they should cope with the obligations' implications on the ground.