Trending Toward Precaution at What Cost? Reconciling Positive and Negative Human Rights Obligations in the Use of Neuro Intervention for Sex Offenders

This article argues that while domestic criminal justice theory must balance positive and negative state obligations under the international human rights framework, the proactive risk-based approach, and incumbent precautionary principle, defeats states negative obligations by intruding on fundamental concepts of human dignity and autonomy which invites greater breeches. It elevates security as a meta-right in the human rights regime displacing liberty, human dignity and non-discrimination. The use of neuro intervention in sex offender cases, even when offered as a choice for reduction of sentences, highlight this trend and represent not only a threat to negative obligations but also a facially invalid protocol for positive rights obligations. Toward these ends, the ECtHR went astray in the Mastromatteo case which gave license to risk penology when it shifted from the “identifiable individual” standard established in Osman to a general public security approach, and in Dvoracek where the precautionary principle was impliedly operative in extending medical necessity to court ordered neuro intervention in sex offense cases.