European States’ Obligations to Repatriate the Children Detained in Camps in Northeast Syria
Sections I and II.A.), States’ positive obligations under the right to life
require the children’s repatriation.
The right to life is a fundamental human right, whose “effective protection is
the prerequisite for the enjoyment of all other human rights and whose
content can be informed by other human rights.”383 International and
European human rights law place a positive duty on States to protect the
right to life.384 Under international law, States have a duty to exercise due
diligence to protect the right to life from all reasonably foreseeable threats,
even in cases where conduct that is not attributable to the State can result in
loss of life.385
European human rights law also requires the interpretation and application
of the right to life so as to make its safeguards practical and effective for
those within their jurisdiction, 386 which includes the obligation to take
preventative operational measures. 387 The ECtHR has interpreted this
obligation in a way that does not impose “an impossible or disproportionate
burden on the authorities.”388 In cases of allegations of authorities’ violation
of their positive obligations to protect the right to life, the ECtHR has had to
assess whether “the authorities knew or ought to have known at the time of
the existence of a real and immediate risk to the life of an identified
individual or individuals […]” and whether they “failed to take measures
within the scope of their powers which, judged reasonably, might have been
expected to avoid that risk.”389 To satisfy this test, the ECtHR has found it is
sufficient to show the authorities “did not do all that could be reasonably
expected of them to avoid a real and immediate risk to life” of which they
“have or ought to have knowledge.”390
HRComm, “General Comment No. 36 (2018) on Article 6 of the ICCPR on the Right to Life,”
CCPR/C/G/36, 30 October 2018, para. 2.
384 ECHR, Article 2; See also: ECtHR, “Osman v. UK,” Application No. 23452/94, 28 October 1998, para.
116; ICCPR, Article 6; see: HRComm, “General Comment No. 36 (2018),” para. 18.
385 HRComm, “General Comment No. 36 (2018),” para. 6, 7, 18 and 23; See, for example: HRComm, “S.
and others v. Italy,” Communication No. 3042/2017, CCPR/C/130/D/3023/2017, 27 January 2021, para.
8.5, 8.7.
386 ECtHR, “McCann and Others v UK,” Application No. 18984/91, 27 September 1995, para. 146; ECtHR
“Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania,” Application No. 47848/08, 17
July 2014, para. 30; ECtHR “L.C.B. v. the United Kingdom”, 14/1997/798/1001, 9 June 1998, para. 36.
387 ECtHR, “Osman v. UK,” para. 116; ECtHR, “Centre for Legal Resources on behalf of Valentin Cîmpeanu
v. Romania,” para. 130.
388 ECtHR, “Osman v. UK,” para. 116.
389 Ibid.
390 Ibid.
383
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