Welcome to the new books network. Hello and welcome to this episode of new books in law. Today on the show we have Dr. Sara Kesela, who will be talking about her book Global Risks and International Law, the case of climate change and pandemics published by Broden and Hoff in December 2023.
Global risks present formidable challenges in international law. Although they have long been identified in many other scientific disciplines, they are currently only considered on a sectoral basis in international law in the absence of a legal definition. The aim of the book is threefold. The first is to identify the main elements and characterize global risks from a legal perspective.
The second is to determine the characteristics that make them a new category of risk. And the third is to analyze the changes they bring about in the main mechanisms of international law. Drawing on the relationship between international law and other legal systems, and in particular national law, this book highlights the possible responses to the challenges posed by global risks. The study is based on extensive practice related to the examples of climate change and pandemics, but opens up the perspectives on conclusions that could be common to other global risks, such as financial risks or cyber crime.
Dr. Kesela, welcome to the show. Thank you very much. So instead of me introducing you, maybe could you tell us a bit about yourself and about your background?
Yes, sure. I'm currently a professor of international law at University of Parisite, and I have been working for several years now on international responsibility of states, of international organizations, and also on environmental and health issues in international law. So I published several books and articles on these different topics. Okay, and what inspired you to write about global risk in the context of international law, and maybe why did you choose to focus on climate change and pandemics?
Well, during my research, I noticed that several characteristics seem to be similar to a series of risks, such as those linked to climate change or pandemics. And at the same time, I realized that some institutions like United Nations, also the World Economic Forum in Davos, for example, used to assess and list every year the main global risks for the next year, while they never gave a definition of this risk. And for example, the United Nations advocates a holistic approach of these risks, including also legal means of action, but without trying to give a legal definition. As I noticed that this definition was missing, since international law currently only deals with one risk at a time, but not only do they seem to share common features, more than that.
And several of them seem also to be interdependence. So I started my research projects in early 2019, and the idea at that time was to study the tourists I knew better, and to determine which characteristics they shared, and what were the links, and eventually what could be the conclusions that could be also used to analyze other global risks that you mentioned. Okay, and how would you define global risks in international law and how are they different to other types of risks? Well, global risks are legally defined both through their origins and through their effects.
First, they have multiple causes linked mainly to lawful activities, including actions and emissions of a plurality of actors, and each one of these actions or emissions has a potential global reach. Second, they affect resources of common concern, and so they produce a series of incidents of damage, and the accumulation of these series of damage in space and time must be taken into account in order to evaluate the total harm. So we can identify several broad categories of current global risks that seem to share these features, economic, environmental, geopolitical, societal, and technological. Most of them are really not new in regard to their nature.
For example, in the 18th century, scientists already knew that preserving the forest was extremely important in order to maintain a stable climate. And obviously, scientists also knew many things about epidemics, but the features that made them distinct from other risks consisting of the level of indetermination in their interconnectedness, which generates a high level of complexity, and also in the seriousness and breadth of the effects, which emerged alongside the globalization process. And I would say we can suppose that the impacts on legal regimes will be as large as the impact of the new risks that were born from the Industrial Revolution at the end of the 19th century. Okay, thank you for that definition.
And you draw upon various disciplines in the book, such as economics and sociology to shape an understanding of the international law definition of the risks. Could you speak more about that a bit? Yes, sure. The first thing was that authors in these various fields that you mentioned have been studying what they define more systemic risks for a long time now, because some of them started in the late 70s.
And even the first ones that identified these risks were experts from hard sciences, mainly from astrophysics. Thus, I felt I had to start from the works of persons that have already identified these risks in the disciplines. This is basically how research works. And I think you cannot grasp correctly the main features of these risks if you don't have a holistic approach.
Really, one of their features is also that their comprehension and management implies a dialogue between several different fields. And only after understanding the features they had identified could I turn to a legal analysis? So maybe I can give two examples. Sociologists elaborated in this respect to the notion of organized irresponsibility, which is extremely useful also to understand why international regimes of responsibility cannot fully grasp or efficiently grasp the challenges born from these risks.
And then on the other side, thanks to economic works, I understood how the main categories of risks are interconnected, and thus wider effects are largely unpredictable using the usual economic modeling. And you mentioned that you started doing this research in 2019. So this is, I'm curious about how the COVID pandemic influenced the research. It seemed very topical, but must have started a bit before the pandemic started, right?
Yes, that's true. Well, I already worked on pandemic issues, and we know that everyone, the World Health Organization and its members already knew that something like that was happening. We just didn't know exactly when. So unfortunately, I would say there have been obviously bad and good effects of having the pandemic in 2020.
The bad obviously were that research was slowed down, but the good, if I can say it in this way, where that I had much material to work on, obviously. I can imagine. And so you examine in the book the relationship between climate change and pandemics. What are some of the legal insights that you learned from that intersection?
Well, when they occur, these risks influence each other's evolution, and this link between them is more and more studied by experts and experts in both fields. On one side, climate change is one of the causes of the emergence of new pathogens, the spread of which can also obviously lead to a pandemic. And the acceleration of climate change tends to modify their conditions of transmission of transmission, which is rather well studied by scientists today. And environmental risk creates so direct health impacts and also the expansion of infectious disease risk.
On the other hand, pandemics contribute to degradation of many ecosystems in parallel with climate change. And that is why today the one health approach tends to build on the acknowledgement of this special interrelationship between these global risks in order to avoid to address them in a mutual supportive way. One good example of these is the fact that has been recognized at a universal level, direct to a healthy and sustainable environment. And could you discuss a case study that maybe highlights the complexities of international law in dealing with global risk?
Oh, I would say that almost all case studies couldn't be used to mention this because you have many, many cases that are brought before domestic courts, but which also deal with international law enforcement. And you have less cases at the international level, but for example now that there are three requests of advice or your opinions of international courts on climate change obligations of states and on state responsibility for climate change. I would say that the main challenges are about standing of those who ask for recognizing state responsibility. You also have very important challenges about causality because it's very, very difficult to link actions or remissions of an actor with a damage that occurred maybe on the other side of the earth.
And you have also great challenges because there is always multiple responsibility and it's very difficult for a court to distribute responsibility in the spring work. And are these other cases at the national and international level, are they different from each other? Are they treated quite uniformly? And I imagine that there's some discrepancy of how courts approach these issues.
Quite surprisingly, there are more similar features between domestic and international litigation. What is really striking is that at the domestic level, you have thousands of cases now, it was hundreds before, and you don't have much international litigation. But this is because of the difficult condition of jurisdiction of international courts. So you have more advisory opinions at the international level that, for example, some small developing island states that are threatened to disappear because of sea level rise, decided would like in any case to try to make requests to international court of justice, for example, in order to recognize responsibility of the main thing that would be responsible for climate change.
So maybe we will have also more international litigation about that. But really, there are common features and what is interesting is that courts tend to quote each other, even from very, very different parts of the world. It's really difficult to ignore the solution that have been taken by other courts. And I'm very curious to see what international courts will do with that because we are starting to have much greater low on these issues.
And really regarding responsibility, there are very similar issues and challenges in domestic and international law. So you mentioned a bit about this, but my next question was going to be who is behind these cases. So you mentioned small island states. Are there any other groups that tend to bring these cases forward or is it just done?
On another kind of litigation, yes, because there is much litigation before human rights courts and international bodies. Because many human rights are directly threatened by global risk. And so for example, there has been a very recent decision of the European Court of Human Rights, which decided that Switzerland is responsible for the damage to several persons because of its negligence in the fight against climate change, for example. And also many people tried to raise questions about the responsibility of states for their negligence in trying to fight the COVID-19 pandemic.
So you have much, much litigation before the nettic holds on this issue. And very often it is based on international treaties protecting human rights, for example, in relation to the right to have. Okay, interesting. And in terms of the biggest challenges that international law faces when addressing global risks, could you tell us a bit more about that?
Yes, international law has many legal regimes that are devoted to this risk, but only to one risk at a time, which means that they lack coordination between them and also with other legal regimes that many pursue different objectives, which also have the capacity to produce effects on global risk. So the main problem, according to me, that international law currently fades to capture this interplay between all the stakeholders and also the ability of the evolution of this risk. And as I mentioned also, international legal regimes are responsibility, both of states and of international organization, have not been conceived to address these kinds of liability and the liability of the different actors that are involved. And mainly we are talking about private actors.
And is there any kind of concerted effort to join efforts between states to address global risks or is that not happening? Well, it's not a very good period for multilateralism, but in any case, there are some examples. I would say the most interesting, currently, is the example of the negotiations of the pandemic treaty at the World Health Organization, because what is really interesting is that for the first time, there is a true holistic approach, which means that states are not only negotiating on health issues, but also on economic issues, on environmental issues, on human rights issues that are linked to pandemic. And I think this kind of method is the only way to try to address this kind of challenges.
So yes, there are some examples, unfortunately, maybe not enough, but this is a striking example. Awesome. And have there been any legal innovations or solutions that might help overcome the risks? Well, I think the example I've just given of the current negotiation of the Atlantic Agreement is one of them.
And in international law, we already have some legal tools that are interesting and that are already starting to be used, such as due diligence standards or the integration principle, for example. So I believe that the best way way forwards would be to develop mutual support perspectives about these risks. And what it does mean? It means that each legal regime should not pursue only its own objectives, but also really proactively taking through account the objectives of other regimes.
I give an example of international economic law. For example, it's very important to protect foreign investments, but foreign investments could also be extremely precious to try to fight this risk, for example, in that in specific energies, etc. So this is the ideal mutual support of regimes. So you mentioned a bit the relationship between human rights and state responsibility in regards to global risk.
Could you expand a bit more about how global risks are backed up by these principles? Yes, there has been in litigation, a sort of strategic turn to human rights courts to address harm codes by global risk. And this has been in part because the rules of standing before these courts are rather open and also because of the possibility to claim respect of subjective rights. And this is true that several human rights are directly threatened by the realization of global risk, obviously the right to have, for example, but also the right to private and family life and other kinds of rights.
And this litigation has been rather successful before domestic courts, as well as regional and also universal bodies protecting human rights. So the example I gave of the European Court of Human Rights, that is maybe the most recent is topical in this regard. And is state responsibility used in relation to global risk at all? Does it focus on human rights?
State responsibility is used, and again, above all, by domestic courts because state responsibility in this perspective is based on state negligence. The main actors that are the direct cause of this risk are private actors that states should control directions and also take preventive measures for actors that are under their jurisdiction. So usually courts recognize very often that states don't take enough means, sometimes no means at all, to try to stop these actors from causing harm. So mainly it is a responsibility based on omissions of state.
Okay. And the age of age old question in international law about how accountability is enforced. Is there maybe separating it from the national and international level? Are there how is accountability enforced on both of those levels?
Well, I can't, yeah, that's always a very important question for international law. I would say that at the domestic level, what is asked to the courts is to make injunctions to governments to take all the means they should take to fight for the next, for example, to prevent, to prevent important damages to happen by taking preventive measures and also to fight, obviously, climate change. So mainly these are injunctions of the cause to government. Sometimes they are rather efficient.
Sometimes they aren't followed after they're taken at the international level. It's obviously more difficult and I already said that one of the challenges is for a court in international court to have jurisdiction on these matters, because states must agree to to the jurisdiction of courts. I don't have many cases, but I would say that advisory opinions can be a good and sometimes a very efficient way also to try to enforce accountability. If you take two advisory opinions and one is also environmental issues taken by the international tribunal on the law of the sea, they have been used by many states, for example, to negotiate new rules to modify their domestic laws.
And so sometimes even if some decisions are not strictly speaking binding for states, they can be rather influential. That's why I'm waiting for these three advisory opinions. And on the national level, have there been any significant cases that have resulted in any significant findings of global risk? Yes, there are many cases at the domestic level.
There have been on the pandemic issue and mostly on the COVID-19 responsibility of states. There have been many cases, for example, in Latin America where the liability of states was recognized because they hadn't taken enough preventive measures. And they hadn't prepared their health system to this kind of situation, emergency situation that was foreseen. And on the side of climate change, there have been now many, many cases.
The first one that is very well known is the Uganda case that was decided in the Netherlands. And so the responsibility of the Netherlands was recognized for failing to enforce its duty of care in relation to its population because of inactivity in fighting climate change. But for example, risk accessibility of France has also been recognized of Germany, of many other states all around the world, Pakistan, Colombia. And what is extremely interesting, as I said, is that as these courts face very similar challenges, they tend to quote each other.
So this is extremely interesting. And in terms of advice that you would have for policymakers trying to legislate for to include global risk, do you have any advice for international cooperation there? I would basically derive advice from the integration principle, which means that states should first implement guidelines in order to mainstream global risk into all their public policies at the domestic level. And obviously, the same perspective should also be followed at regional and international levels, for example, when negotiating treaties or as members of international organizations.
And I'm currently working on a collective project in order to assess how many states of the European Union, for example, integrate these risks in their public policies. And the aim is to try to draft some guidelines on best practice. And I think the coercive approach is not the only good approach. There's also a constructive one.
And the constructive one would need to elaborate and use soft law instruments. Some international organizations are rather influential by using in this way the normative power. And so the idea of sharing that practice sometimes can be more efficient than only condemning states for their inaction. I think also one interesting feature of soft law is that it gives the possibility for the main stakeholders that are interested by global risk to discuss and to share their difficulties and their practice.
I think you mentioned corporations. Big corporations face very similar challenges than the challenges the states are facing. And they are the most directly affected actors or more directly interested actors by these risks. And you mentioned the EU there and I'm trying to address global risks together.
Does the European framework of international law, how does it help and how does it change the process of legislating internationally for global risk? The process can slightly change when the European Union shares jurisdiction with member states in relation to this risk. For example, it is the case, it is the case both regarding environmental issues and health issues too. So, for example, the European Union is also party to the treaties that address this risk.
And for example, the reduction of greenhouse gas emissions is first decided in the context of the European Union and after implemented by member states that still have a discretionary power. So, in this case, both kinds of actors participate to this fight and you can't just conceal one of them. It's important to think about them at the same time. Interesting.
And in terms of the future direction where you see international law heading to in the relation to global risk, what do you see in the future for it? It will be very, very ambitious to say I first did something in a period where really, but that reason does not really work anymore. Anyway, and precisely for this reason, I think it's not really realistic or particularly useful to wait only for interstate initiatives in this field. And I really believe that we need initiatives that come from different actors and also at different levels at the same time.
I already mentioned soft flow instruments. They are extremely useful. And so they can come from a group select from international organizations, from networks of state agents to a civil society, obviously has a port to play. So I think that also these initiatives should come from different levels.
I mentioned the regional level, the domestic level, the international one. We don't have to expect something only coming from interstate rules or interstate conferences. And so you've mentioned global risk as a kind of umbrella term describing different kinds of risk. And then you mentioned, for example, the WHO legislating the towards working on a treaty for specifically for pandemics.
I'm curious, is there an approach where you cover all risks together? Or would you recommend looking at them more individually if that makes sense? Would you mean an approach by international actors or by experts? Both.
So from international actors, as I said, it was one of the objectives of my book, there's no global approach. At least there's no global definition or legal regime. But there are more and more connections that are made between these risks. And even for example, conferences of the parties on different treaties are international institutions like the World Health Organization.
Or starting to work on different kinds of risks at a time. So there is, I think, an international perception that you need to think in a more prolific way. It's starting to work in a way. And I think that it's important that also experts, lawyers, economists, scientists gather together and try to think together to this kind of risk.
For example, I participated last year to a very interesting conference in Monaco and it's put together lawyers and biologists on global risk for oceans. And I thought it was extremely interesting because we all tried to explain it in a very clear way what are the stakes for each of our disciplines of these risks and how we try to manage them. And I think it was very, very useful to try to understand the challenges that pertain to other fields. So we are starting to think in this way.
And for example, I'm working with other colleagues now that are experts of cyber risks and we are working together to enlarge the perspective to write a handbook more generally on global risk to try also to see if there are more similarities or very specific features for every one of these risks. But I think that for example, economists have recognized it's a long time. They are very much interconnected. And so it's important for lawyers also to realize that and to contribute to the discussion.
And throughout your research, was there anything any discoveries that you made that were particularly surprising and have they influenced the way that you approached global risk and international law at all? Maybe it was not to discovery strictly speaking, but to really discovery, which means that when I was searching for an almost looking at the different rationales that are used to elaborate responsibility regimes, I really discovered the Roman perspective, the ancient Roman perspective, that links responsibility more to the position, the role of an actor as a guarantor of a specific balance than with the notion of thought that is more recent. Romans didn't really work on the notion of thought or not in really the strict sense that we use nowadays. And I thought that this perspective was really perfectly suited to global risk and to the anticipatory, anticipatory approach we need.
That is usually not the approach we tend to use at the domestic and international level for responsibility. Another feature which I discovered was really interesting is that this approach of responsibility really echoes legal systems of other parts of the world that are very far from Europe, but that stress the link between humans and nature. And that focus on the balance that must be preserved between them. So this idea of balance is an idea that is not new at all, but that has been much disregarded since we always, or very much focus on the notion of thought.
And I think the notion of thought is not very useful is maybe something that is an obstacle to really understand how responsibility can contribute in regard to this risk. And which legal systems does that principle of the connection between humans and nature come from? You find that, for example, very much in Latin America, in several countries of Latin America where also parts elements of the environment have been recognised as having subjective rights, which is not much a reproach in Europe. But even not taking this perspective, the idea of a general balance between humans and nature underscores many of the features of these legal regimes.
And I think that it's very interesting to compare this with a Roman perspective that is more known in Europe and in our tradition, but that draws on the same idea, the same basic idea. And what is on the horizon for global, for risk globally in terms of international law? How is the field developing over the next few years? How is the field developing among states or for experts in the academia?
Among states. You're still asking me to foresee what will happen. And so I'm not sure if you're really able to foresee. I think it indicates states will be more and more interested to have tools in order to address this issue.
That's why I think one of the very potent contributions that experts can make is to try to help to elaborate these kinds of tools of maybe guidelines, codes of conduct, I would say, that practice papers that can really try to help both. States and corporations actually because it's always really, it's also a question that is extremely important for corporations and they're trying to find solutions also because due diligence of corporations, for example, for multinational corporations is a tool that is already used in a way that is rather similar to the way due diligence is used for the responsibility of states. So corporations need to have some guidelines on these issues too. And in one important case in the Netherlands, an important and very famous multinational corporation has been recognized responsible for civil law for negligence in controlling its different societies, and different corporation of its group and their greenhouse gas, greenhouse gas, sorry, emissions.
So I think that this issue will be of interest both for these kinds of actors, and it would be good for them to think about and to discuss this issue together. The same can be said, for example, for financial risk or for cyber risk, obviously cyber is are very important and in a similar way for corporations and for states. Okay, now I think I have a bit of an easier question, which is what is what is on your horizon and what research do you want to are you looking to do over the next few years. Well, on my horizon, I already mentioned that I'm working on two projects now that are linked to lower risk.
The first one is to write a handbook with my colleague that works on cyber risk, and we are gathering many experts on the different categories of risk. So I would like to enlarge the perspective. We are giving them a series of questions, and the idea is to organize workshops and to write after different chapters of this book on each one of the risks answering the same questions, and we will try to summarize what are the main conclusions we can drive from that, which means both similarities, similar features, and also specific features that are not common to these risks, and some of them surely are. And a second, we are also working on a collective project that aims to give to at least member states of the European Union or some states guidelines about the best practice currently available on integrating global risk in public policies as well at the domestic level at the international level.
So I think this project will last several years because it's an ambitious one, but maybe it can bring a concrete contribution to this challenge. Wonderful. So next time we'll be talking about cyber risks in that case. I hope so.
Well, that was the last question of this episode. Dr. Kacala, thank you very much for joining us today. Thank you.
And then about the book Global Risks and International Law, the case of climate change and pandemics published by Broninhof in 2023. That was fascinating to hear about global risks and how they interplay with international law and thank you for listening.