This event features a discussion with Amanda Kron (Lund University & EUI).
Abstract
Due diligence obligations are changing in the face of climate change and severe environmental degradation. Following the ICJ Advisory Opinion on obligations of States in respect of climate change, it is clear that there is a heightened duty for States to act with due diligence and take appropriate measures to prevent climate harm. This duty includes an obligation for States to take ‘necessary regulatory and legislative measures to limit the quantity of emissions caused by private actors under its jurisdiction’.
The duty of States to regulate private actors - or regulatory due diligence - has come under increased scrutiny, with debates on how far this duty stretches and how it should be conceptualized. In addition to the ICJ Advisory Opinion, we can see engagement on regulatory due diligence of corporate harm to the environment and human rights in scholarship in business and human rights and transnational environmental law (e.g. Deva 2021, van Asselt and Rao 2026, Varrall et al 2026) as well as in the work of the International Law Commission on due diligence in international law.
For regulatory due diligence to be meaningful and not devolve into cosmetic compliance, the regulations adopted by States must be effective and substantive. Thus, it is not sufficient for States to simply demonstrate that they have regulated corporate actors but also how they have done so. This substantive requirement is linked to the stringent due diligence acknowledged by the ICJ, with heightened requirements in the face of climate change and severe environmental degradation and, correspondingly, a more limited scope for deviation and discretion on behalf of the State.
This paper explores the evolving landscape of regulatory due diligence. To chart the conceptualization of regulatory due diligence, the article maps emerging criteria for ‘appropriate measures’ that States need to take to fulfil their regulatory due diligence duty. These measures are necessarily connected to the types of harm that the corporations in scope of the regulation must in turn identify and assess as they delineate what harm is effectively made visible through the due diligence process. The paper adopts a comparative methodology, assessing how the phenomenon of regulatory due diligence and the associated ‘appropriate measures’ to regulate corporate climate harm have been conceptualized in recent decisions and instruments within international climate law, international human rights law and at the EU level.
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