Phd in PUBLIC, COMPARATIVE AND INTERNATIONAL LAW

Thesis title: La contrattualizzazione della protezione ambientale nel diritto internazionale

This thesis analyzes the international legal framework regarding the accountability of multinational corporations and private companies for serious environmental damage caused by their operations, whether by subsidiaries or affiliates located in countries where production processes are typically relocated, or by their parent company, which is generally incorporated under the domestic laws of countries located in Western Europe and North America. In parallel, in order to legally frame the regulation of transnational corporations, this work examines non-binding and voluntary alternatives of intergovernmental, regional, and private origin, developed to guide private actors toward environmentally responsible conducts. In this context, the research aims to assess the possibility of ensuring an adequate level of environmental protection by multinational corporations by converting social and environmental responsibility standards into legal obligations through their incorporation into contractual clauses. Under domestic law, compliance with these provisions would therefore be mandatory for the parties, who would be allowed to invoke the breach of contract in the event of a violation of these clauses by one of the contracting parties. The aim of this thesis is to determine whether the use of contractualization can bridge the gap between the absence of a binding international framework for companies and the presence of merely voluntary initiatives that are not binding on companies operating along the production and supply chain. It is also necessary to assess whether this practice can ensure effective application of internationally recognized environmental protection principles and, at the same time, prevent unlawful environmental conduct by multinational corporations. In this regard, in order to assess the effectiveness of the contractual approach through its concrete application in international law, this work will first provide an overview of the incorporation of principles of international environmental law, voluntary environmental protection standards, and codes of conduct developed by international organizations into a contractual agreement. This will help assess the drafting methods of contractual clauses and evaluate their legal effectiveness, with particular attention to the language used and the position of such provisions within the contract. Along these lines, the thesis will explore the current scope of the phenomenon of contractualization of environmental protection by proposing a preliminary database of international contracts that include an environmental protection clause. Specifically, these include agreements concluded between private companies, multinational corporations, and States, as well as model contractual clauses developed by International Organizations and institutions. Finally, four additional areas of study on the contractualization of environmental protection have been identified: the practice of the International Seabed Authority and contracts for the exploration and exploitation of mineral resources in international seabed; contracts concluded with the International Finance Corporation within the World Bank for the provision of financing to private companies operating in developing countries; UNIDROIT initiatives regarding environmental protection by private companies along the value chain; and, finally, contracts concluded between States and private companies for reconstruction in post-conflict contexts. From a methodological perspective, unlike the previously mentioned database, the four chosen case studies were identified based on the presence of a (more or less clear) international institution or organization responsible for ensuring compliance with contractual provisions for environmental protection by private companies. As we will attempt to demonstrate, in these contexts the legal effectiveness of contractualization depends on the role of International Organizations, and institutionalization appears to further guarantee the effectiveness of the contractual approach to environmental protection. With constant reference to the relationship between legal systems, the application of contractualization in an institutionalized context allows individuals and businesses to become recipients of a legal regime. The organization, therefore, centralizes certain functions and, with regard to environmental protection, identifies tools that connect international law and the final recipients—businesses—as subjects of domestic law. Therefore, contractualization is characterized as a complementary instrument to international environmental law: although the contract itself cannot guarantee effective environmental protection, it represents the mechanism through which obligations under public international law and private law can synergistically ensure the achievement of this objective. Finally, a look at the basic functions of the legal system reveals the ongoing consolidation of the expansion of the range of subjects—private actors and businesses—and a constant dialogue between legal systems. Analyzing international law through the lens of International Organizations and institutionalization shows how it also addresses the ultimate beneficiaries through contractual discipline, going beyond agreements between States.