Preventing violations of the right to life in the European and the inter-American human rights systems: From the Osman test to a coherent doctrine on risk prevention?

Abstract

This article analyses the application of the 'Osman Test', the predominant legal criterion regarding the duty to prevent violations of the right to life by non-State actors in the case law of the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR). Adopted by the ECtHR in Osman v United Kingdom, this test has been subsequently employed in numerous cases involving different scenarios. The IACtHR, too, has resorted to this test in light of its own context and legal framework. However, the application of this test to scenarios for which it was not originally conceived has given rise to conceptual confusion. Also, the test has proved inadequate in certain situations, in particular those involving 'structural risks'. This article argues that the two Courts should clarify the Osman Test's elements, delimit its scope of application and further develop its conceptual framework in order to accommodate the challenges posed by the increasingly complex cases the Courts are facing.