October 04, 2016
I am proud to announce the publication of my PhD “Human Rights in a Positive State – Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights”. In my PhD, I have exhaustively studied the concept of positive obligations in the case law of the European Court of Human Rights, on the basis of a corpus of 2618 cases in which the Court used the notion of positive obligations, identified through the Court’s HUDOC database. During my PhD research, I was particularly interested in how the Court distinguishes between the respective concepts of positive and negative obligations and how the choice to examine a case from the one or the other perspective influences the Court’s legal reasoning.
This is the abstract:
The European Court of Human Rights has long abandoned the view that human rights merely impose obligations of restraint on State authorities (so-called negative obligations). In addition, States are under positive obligations to take steps to actively protect and ensure the rights and freedoms guaranteed by the European Convention on Human Rights. While the concept of positive obligations has become increasingly important in the jurisprudence of the European Court, it remains relatively underexplored in the literature. This book goes beyond the existing scholarship by analytically, critically and normatively engaging with the Court’s positive obligations case law in a comprehensive and in-depth manner.
The book begins by providing an overview of the Court’s jurisprudence in this area. Building upon this overview, it brings to the fore the legal methodological consequences attached by the Court to the labels of positive and negative obligations. It moreover critically examines how the Court constructs the distinction between positive and negative obligations, building upon the underlying distinctions between public authorities and private entities, on the one hand, and State action and inaction, on the other. The central argument made in this volume is that in a positive State, in which the authorities have affirmatively intervened in so many areas, it has become increasingly difficult to draw a baseline to properly distinguish between action and inaction. Finally, the author makes suggestions for legal methodological change. This book will prove to be highly valuable for any practitioner or academic interested in the law of the European Convention on Human Rights.
For more information and a detailed table of contents, please visit the website of Intersentia.
In order to highlight the publication, this week and the next, Strasbourg Observers organizes a blog seminar on the concept of positive obligations, in which leading scholars in the field of positive obligations will set out their research and will reflect on how their research relates to the findings of my PhD. On Thursday, we will publish a blog post by Vladislava Stoyanova (Lund University), which focuses on positive obligations under absolute rights, with a particular focus on Article 4 ECHR (the prohibition of slavery, servitude and forced labour). Next Monday, Malu Beijer (Radboud University Nijmegen) will present her research which focuses on the question of how the doctrine of positive obligations under the ECHR can be transposed to the fundamental rights jurisprudence of the Court of Justice of the European Union. Finally, next Thursday, Corina Heri (University of Zurich/Ghent University) will illustrate how vulnerability-based positive obligations can be used to require sensitivity to context and to create precisely tailored protections for specific groups of individuals. I hope you look forward as much as I do to to our upcoming positive obligations blog seminar!