A Human Rights Perspective on CBRN Security: Derogations, Limitations of Rights and Positive Obligations in Risk and Crisis Management

Abstract

The traditional way of looking at the human rights law (HRL)—security interplay—is to assess the admissibility of derogations in particularly serious situations and of ordinary limitations of rights. Indeed, when implementing security measures, states have the primary negative obligation (NO) to refrain from impacting on human rights in a disproportionate or unnecessary manner. This article argues that, in order to more comprehensively understand the role of HRL in protecting from CBRN risks, it is crucial to look also at positive obligations (PO), as duties to take active steps to ensure respect of rights and prevent violations committed by third parties or deriving from a dangerous situation. PO stemming from HRL, which are subject to increasing academic attention, may help in clarifying states’ duties both before and during an emergency. After providing some introductory remarks, this article first briefly explores whether CBRN security measures are having a specific impact on NO, i.e. on the admissibility of derogating from HRL and limiting rights. It then focuses on PO stemming from the European Convention on Human Rights (ECHR) and applicable to risk and crisis management. It briefly discusses the main elements of the development of PO under the ECHR, and it explores the ECtHR recent jurisprudence dealing with natural and man-made disasters and counter-terrorism operations. From these cases, it distils obligations related to risk assessment and mitigation, planning and implementation of relief operations, communication with the public and investigation of alleged violations of human rights.