Risk and the UN International Covenant on Civil and Political Rights

Abstract

This dissertation addresses obligations of States parties under the International Covenant on Civil and Political Rights (ICCPR) to refrain from exposing individuals to risk through their own conduct and to prevent or mitigate such risk exposure caused by the conduct of third parties. In this dissertation, such obligations are described broadly as ‘risk-based obligations’. Drawing primarily on the jurisprudence of the Human Rights Committee on articles 6 and 7 of the ICCPR, this dissertation first uncovers the role of risk as a phenomenon giving rise to human rights obligations in varied situations, and then addresses certain theoretical and doctrinal issues associated with conditioning obligations upon risk. It is argued that the concept of risk is relevant to the general undertaking in article 2(1) ‘to respect and to ensure’ Covenant rights, as well as to more specific obligations entailed in substantive rights, particularly the right to life in article 6 and the prohibition on torture and cruel, inhuman or degrading treatment or punishment in article 7. Yet, despite the important function of risk as a condition or criterion giving rise to specific duties, the concept of risk is under-examined in the Committee’s jurisprudence. In the absence of detailed consideration, various theoretical and doctrinal issues have emerged. This dissertation identifies and addresses four such issues: first, the challenge of articulating the meaning and nature of ‘risk’ for this context; second, the challenge of circumscribing risk-based obligations in a way that is sufficiently clear and principled; third, the challenge of defining an appropriate standard of review in the Committee’s consideration of States parties’ findings regarding risk; and fourth, the challenge of clarifying the distinction between risk and causation and specifying what it means to ‘cause’ risk-exposure for the purposes of the ICCPR. This dissertation uncovers these issues in the Committee’s jurisprudence and proposes approaches to: (1) clarifying the nature of risk findings, and relatedly, the applicable standard of review; (2) clarifying the distinction between risk and causation, and (3) selecting a theoretical account of causation to explain when a State party should be regarded as having caused risk-exposure, particularly for cases concerning causally complex human rights risks, such as the risks of anthropogenic climate change.