This draft Convention is not intended to replace existing policy-related international agreements dealing with risks. Instead, it is designed to create an enhanced extra layer for situations where risks start threatening the existence of humankind and thus become “existential risks”. International agreements dealing with risks take as a basis normal risks that do not threaten the existence of humankind. They rightly lack very invasive international mechanisms because, for normal risks, those invasive international mechanisms would not be justified. The situation is entirely distinct when the inaction of a state also threatens the survival of all the inhabitants of all other states. In such situations, more powerful and invasive mechanisms are required and justified. Potential scenarios of this kind include the following:
- A state may choose to refrain from implementing measures to prevent the rapid dissemination of deadly pathogens with the capacity for rapid mutation.
- A group of individuals with the intention of destroying humanity develops deadly microbes that cannot be countered by available means.
- A state is ruled by an individual who has the intention of destroying humankind and therefore develops deadly microbes that cannot be countered by available means.
- A state is ruled by an individual who has the intention of destroying humanity and therefore develops a significant military force of artificially intelligent robots, which have been programmed to kill all humans.
The first three examples could theoretically be covered by the currently debated WHO Convention or other international instrument on pandemics, which we have commented on in 2023. However, it is challenging for states to reach consensus on fundamental principles and measures to be employed in the event of an ordinary pandemic. Consequently, it is unlikely that an agreement on how to effectively address a pandemic that poses a threat to humanity will be reached within the WHO context in the near future. Therefore, there is a regulatory gap not only for cases where no international agreement exists in the first place but also for cases where an international agreement exists or is at least in place.
The draft Convention is intended to address this regulatory loophole in the field of international public law. It should be noted that this conceptual contribution does not imply that the draft Convention will be adopted or even negotiated in the years to come. The entire discussion of existential risks is still relatively recent, and the international mechanisms are not yet sufficiently developed to allow this to happen in the next 10 years. Nevertheless, it is considered important to pave the way conceptually, creating a minimum benchmark for future discussions and negotiations. This is particularly the case given that we have readers working for governments who are either in a position to initiate international negotiations or are at least relatively close to those persons.
One might wonder why more invasive measures of a Convention on existential risks should be agreeable, where states even struggle to agree on principles for ordinary international agreements, e.g. on pandemics. The answer to this question is twofold:
Firstly, the dedicated special angle, the threat to the entire humankind, might trigger a greater readiness of negotiators to accept measures and even invasive international mechanisms than any other, ordinary angle. Secondly, the draft Convention is constructed in such a way that the adherence of a dozen relatively powerful states to it may already substantially increase the readiness of other states to cooperate in the light of an acute existential risk, whether the other states are contracting parties of the Convention or not.
It must be acknowledged that the draft Convention reaches the limits of what is currently possible under international public law. This is justified by the extremely high value of the existence of humankind. The balancing of values, such as the collective value of all human lives versus state sovereignty and territorial integrity, justifies certain invasive mechanisms that would not be justified if the number of lives at stake were only in the thousands or millions. The balancing of values is also the core of the “state of emergency” principle, a principle that is also recognised in international public law.
Furthermore, the 20th century witnessed a progression of international law towards a more assertive stance. For example, one may cite the various human rights conventions and declarations that emerged in the wake of the Second World War, as well as the international response to the Kosovo crisis in the 1990s. When the crisis first emerged, there was considerable debate among legal professionals as to whether an international armed intervention aimed at preventing Serbia from killing Kosovars on its territory was lawful. The crisis has served as a catalyst for the evolution of international public law, paving the way for more assertive measures to save lives, even when they contravene the principles of national sovereignty and territorial integrity. It is therefore argued that the same justification must apply with even greater force where the number of people at risk is significantly higher. In conclusion, if any conflict were to arise between the provisions of this draft Convention and those of existing international law, it would be resolved by a future development of international public law.
In a similar manner to our model laws, this draft Convention is designed to identify potential avenues for action rather than to dictate a specific course of action. It is recommended that each section be regarded as a mere proposal for discussion, to be picked, modified or dropped as appropriate. The text can thus be regarded as a list of items to be considered. Further elements can be derived from our Checklist for international Treaties, Agreements and other Instruments. In accordance with our non-prescriptive methodology, we present a variety of options in square brackets and a bold OR between them.
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