Human Rights; European Convention on Human Rights; European Court of Human Rights; Risk; Uncertainty; Risk assessment; Law and Economics
Abstract :
[en] Human rights judges – namely the European Court of HR – often refer to the notion of risk. There are indeed many cases that concern a risk of harm (injury, death, etc) that could hurt a human right. In these situations, there is, under certain conditions, an obligation for the state authorities to react and try to prevent this harm in order to avoid a European Court judgment of violation.
When they are dealing with such cases, judges have to assess the level of the risk and wonder if the authorities give (when the risk is present) or have given (when the risk occurred in the past) an appropriate response with regard to the human rights. In this regard, they need to connect past or current decisions or actions with their potential consequences, which means that they have to investigate the future.
Even if judges do their job very seriously, they do not seem to have a clear methodology for pursuing this complex task. However, in other academic fields, especially in economics and engineering science, there is a rich literature regarding the notion of risk. Some risk analysis scholars even try to develop this topic as a proper field of science.
The research relates to the support that other fields could possibly provide to the legal reasoning of human rights judges. Some of the main questions are as follows: are key notions of the risk analysis process (severity, likelihood, acceptability) transferable to the human rights case law? should judges be guided by methodologies developed by risk specialists? or should they continue to apply the rather intuitive approaches they have been developing for years?
Disciplines :
European & international law Public law
Author, co-author :
Bouhon, Frédéric ; Université de Liège - ULiège > Département de droit > Droit public et administratif
Language :
English
Title :
Can Human Rights Judges Travel in Time? Considerations on the ability of the European Court of HR to assess risks