Taking the state's positive obligations seriously

Abstract

In the supranational system of the European Convention of Human Rights, the state's liability is defined in terms of positive obligations when human rights have to be actively protected. In addition to the traditional negative obligation of non-interference, the state must also guarantee the enjoyment of human rights to all individuals within its jurisdiction. Individuals have to be actively protected against acts of interference from private parties and, where appropriate, to be assisted if they are not able to enjoy human rights due to their own circumstances of personal vulnerability. The liability of the states in terms of positive obligations induces a freestanding imperative of human rights that changes fundamentally the perception of the role of the state and the participatory ability of the individual, who can now assert her human rights in all circumstances in which they are relevant. In that regard, positive obligations herald the most advanced control of the state ever attempted in international law. Opening the scope of protection of human rights across the board necessitates corresponding adjustments in the functioning of the European Court of Human Rights, which can no longer rely on ad hoc balances of overall justice to sustain such an unprecedented extension of its business. The current study focuses on the technical expertise that is needed to establish the practical legitimacy of the apparently open-ended scope of positive obligations in view of the actual capabilities of the Convention's institution and those of the member states. Positive obligations are evaluated in relation to their potential to extend and further improve the protection of human rights in the wide range of circumstances in which the state authorities do not directly interfere. What is sought is a comprehensive methodological framework of critical stages and parameters through which the content of positive obligations can be determined. The emphasis is put on the quality of legal reasoning that guarantees certainty and predictability in the planning of the application and development of positive obligations. For this purpose, procedural safeguards are particularly stressed to ensure an objective application of law, as well as the necessary access for the participation of the individual in the implementation and enforcement of positive obligations at the domestic level.