When Are States (Not) Obliged To Save Citizens’ Lives? Discovering the ‘Restrictive Triage’ which Undermines the Operational Duty under Article 2 ECHR

Abstract

The operational duty imposed by Article 2 of the European Convention on Human Rights paradigmatically engages when states know that an individual is at a real and immediate risk of death, and obliges the state to take reasonable steps that might be expected to avoid that risk from materialising. This article explains and analyses interpretation of that duty, both by the European Court of Human Rights and by UK courts. A persistent duplicity is found. On the one hand, judges in both fora have repeatedly championed Article 2 as a fundamental right enshrining a basic value of democratic societies. However, at the same time, a highly restrictive approach to the operational obligation has been favoured; calibrated first by the European Court of Human Rights and intensified by UK judges. Consequently, and by analysing a wide range of European and domestic case law, this article relates that for UK litigants the obligation’s legal tests now comprise a materially compounding ‘restrictive triage’, comprising: (1) ‘identifiability’; (2) ‘state knowledge’ and (3) ‘institutional deference’. Accordingly, and notwithstanding judicial rhetoric, the operational obligation is enforceable in the UK only in vanishingly few circumstances. This reality is criticised, and three reform suggestions are proposed to enable the obligation to help minimise avoidable deaths.