Chicago Journal of International Law

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Risk analysis—a coping mechanism for the uncertainties we see everywhere around us—is on the rise, including at the international level. It now informs, for instance, the work of the Security Council and human rights law and practice. While the story of how risk analysis has inflected international environmental law is frequently told, there has been little attention paid to the way in which risk is increasingly relevant to other areas of international law, including through “due diligence” standards. This Article fills this gap, describing risk’s propagation across different international legal fields. It also offers a taxonomy of the ways in which risk is relevant. This Article distinguishes, for instance, between the way risk sometimes authorizes the state to take an action and situations where the existence of risk obligates the state to react. Finally, this Article seeks to explain potential reasons for risk’s rise and indicate some of the consequences thereof, both salutary (such as greater participation in international legal decision-making) and less so (such as greater horizontal fragmentation of international law).

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