Digital Theses Archive


Tesi etd-09262017-142748

Type of thesis
Chemical, Biological and Radio-Nuclear (CBRN) risks in Europe: States’ international obligations and the role of Human Rights Law in enhancing protection
Scientific disciplinary sector
SCIENZE POLITICHE - Politics, Human Rights and Sustainability
relatore Prof. DE GUTTRY, ANDREAS M.T.
  • CBRN
  • Human Rights
  • International Obligations
  • Positive Obligations
Exam session start date
Risks of Chemical, Biological and Radio-Nuclear (CBRN) origin are attracting a renewed attention at the international level. Since 9/11, concerns have been particularly raised by CBRN terrorism, described as the most frightening scenario since those days and more recently evoked also in Europe, in the aftermath of the terrorist attacks in Paris in November 2015 and in Brussels in March 2016. The most serious risks are however still posed by States’ CBRN weapons’ arsenals, as demonstrated by the use of chemical weapons against the civilian population during the Syrian civil war, the threats posed by nuclear weapons’ programmes and nuclear testing, or the plutonium and nerve agents poisoning cases in the UK. Events potentially entailing grave consequences are also those resulting from the accidental release of CBRN substances, as in the case of industrial accidents, as demonstrated by the Fukushima disaster in Japan, or even from naturally occurring disease outbreaks, such as in the case of Ebola. Legal and policy instruments adopted at the international and regional levels dealing with CBRN risks often call for the adoption of an all-hazard approach to cover all possible scenarios and to mitigate the potentially transboundary and long-term impacts of these events.<br>The academic community has devoted only limited attention to developing a common understanding of CBRN risks in contemporary times and to mapping relevant obligations stemming from the wide range of applicable norms under International Law. CBRN risks are governed not only by rules established under the traditional fields of International Humanitarian Law, Jus ad Bellum and Arms Control and Disarmament Law, but also under the developing branches of Counter Terrorism Law and International Disaster Law. In recent times, regional organisations such as the European Union (EU) and the North Atlantic Treaty Organisation have been devoting significant effort to support the development of CBRN protection capabilities, but it is not completely clear to what extent these are adequate to face contemporary challenges and what are the coordination mechanisms in place between supranational actors and national authorities, who remain the main responsible for CBRN protection.<br>Even more limited attention has been devoted to exploring the role of Human Rights Law (HRL) in protecting from serious emergencies and in particular from CBRN events. The traditional way of looking at the interplay between HRL and safety and security is to focus on Negative Obligations (NO), i.e. obligations to refrain from acting in a way that impacts on human rights in a disproportionate or unnecessary manner, as enshrined in derogation and limitations clauses. Under HRL, however, obligations to take active steps to protect, or Positive Obligations (PO), may be expected to more directly convey the message that protection of human rights and safety and security are mutually reinforcing aims. PO may also complement obligations enshrined in other areas of International Law by clarifying States’ duties in relation to the persons under their jurisdiction. PO applicable to risk and emergency management are currently being developed by human rights supervising authorities but there is still much to be done to fully understand their exact scope and content and their applicability to specific types of emergency situations.<br>The present research adopts a broad approach to CBRN risks, as covering intentional, accidental and naturally occurring events, and aims at exploring international obligations related to CBRN protection in all phases of the emergency management cycle, from prevention and preparedness to response and recovery, and in particular at investigating the contribution of PO under HRL. Chapter 1 discusses the current relevance of CBRN risks, describes the research field and proposes the research questions, aims and methodology. Chapters 2 and 3 analyse the legal frameworks governing CBRN risks at the international and European levels, in order to shed light on their main strengths and limitations in face of contemporary challenges. The role played by HRL and the contribution of HRL-related PO are then discussed in Chapter 4, with the aim to put emphasis on the evolving role of HRL in relation to risk and emergency management. Particular attention is devoted to the practice of UN HR monitoring authorities and to the jurisprudence of the European Court of Human Rights, as the authority that has contributed the most to clarifying the scope and content of obligations to take active steps to protect. PO identified in this Chapter are then more systematically applied to CBRN risks and emergencies in Chapter 5, in order to explore the interplay between PO and other relevant obligations under International and EU Law specifically governing CBRN risks and the standards for PO implementation. In Chapter 6 the research explores to what extent PO are actually implemented in Europe, what best practices and major gaps can be identified and what mechanisms are available in case of non-compliance. Some conclusive remarks and recommendations for further research and better implementation of PO are finally proposed in Chapter 7.