CYIL vol. 14 (2023)

PETRA PRESSEROVÁ CYIL 14 (2023) spirit, it also entered the domain of international human rights law. Within these particular legal regimes, due diligence has been modified into special and particular forms. Irrespective of its growing application, many aspects of due diligence remain slightly unclear under international law. This includes questions regarding its position between primary and secondary norms, its inclination towards responsibility or rather liability, and its precise legal qualification. It is not the aim of this article to examine these general particulars (as that was dutifully done by others before). 8 Nevertheless, the author is inclined to consider general due diligence – with cautiousness – to be a complex, cross-sectoral, broad, flexible, sector-specific, still-evolving standard of conduct arising rather from primary obligations of a state. Turning to the emergence of due diligence in the human rights field, here it slightly transforms from the traditional approach. It reflects that (i) human rights law, unlike other branches of international law, strongly focuses on state’s internal affairs, and (ii) it would be remiss to disregard that many human rights violations are committed by individuals. In the human rights context, it might be argued that due diligence is contained in the primary norms as such. Its existence is connected with the obligation to prevent and investigate violations of political and civil rights (e.g., the duty to prevent acts of cruel or inhuman treatment irrespective of its perpetrator) and to promote and achieve economic, social, and cultural rights, as they are enshrined in all main UN human rights conventions. 9 Also, it stems from the procedural aspects of certain fundamental human rights (especially the right to life, the prohibition of torture and inhuman and degrading treatment, the right to personal integrity, and the right to respect for private and family life). By virtue of that, due diligence insinuates that the state has a duty to act diligently not only when acting on its own behalf, but also in the face of human rights violations committed by non-state actors. This particularly applies in relation to prevention and prosecution of such breaches. Otherwise, the state becomes responsible for its deficient action or a lack thereof (not directly for the violating act itself). 10 Overall, in the author’s opinion, the entrance of due diligence into the human rights field was an important and paradigm-shifting milestone. It became an impulse to act in the name of protection of human rights and a possibility for victims to seek justice also before international human right bodies. Without due diligence, states negligence and carelessness to human rights violations would not face any consequences, and the crucial international scrutiny would be weaker. Therefore, the author reiterates that due diligence is truly a vital tool in the field of human rights law. 8 See ŠTURMA, op. cit.; KULESZA, J., Due Diligence in International Law [online]. Leiden: Brill, 2016 [Accessed 03.04.2023]. ISBN 978-90-04-32519-7. Available from: https://brill.com/display/title/26829; BESSON, Samantha. Due Diligence in International Law . Leiden: Brill, 2023. ISBN 978-90-04-53865-8; KRIEGER, Heike, PETERS, Anne and Leonhard KREUZER (eds.). Due Diligence in the International Legal Order. [online]. Oxford: Oxford University Press, 2020 [Accessed 03.04.2023]. ISBN 9780191912771. Available from: https://doi.org/10.1093/oso/9780198869900.001.0001; MCDONALD, N., The Role of Due Diligence in International Law. International and Comparative Law Quarterly [online]. 2019, 68(04), 1041-1054 [Accessed 03.04.2023]. ISSN 0020-5893. Available from: https://doi.org/10.1017/S0020589319000344. 9 GOLDSCHEID, J. and LIEBOWITZ, D. J., Due Diligence and Gender Violence: Parsing its Power and its Perils. Cornell International Law Journal [online]. 2014, 301(2015), 301–345 [Accessed 18.04.2023]. Available from: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2494867, p. 307; FRENCH, STEPHENSILA, op. cit., p. 14. 10 FRENCH, STEPHENSILA, op. cit., p. 16.

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