The Characterization of the Obligation to Provide ‘Full Protection and Security’

Abstract

The FPS standard has been consistently defined as a due diligence obligation. Still, FPS is not an obligation of means or a pure obligation of diligence in the traditional sense of the terms. In addition to a want of diligence, a breach of FPS requires the occurrence of a harmful event. These requirements admit no exception. The due diligence aspect of the standard implies, first, that approaches arguing that FPS encompasses obligations which impose strict liability (e.g. an obligation to create a judicial and administrative system, as opposed to the obligation to set in motion such system in response to a threat) are ill founded. A second implication is that a breach of FPS always refers to a failure to do something, that is to say, an omission.