October 06, 2016
Guest post written by Dr. Vladislava Stoyanova, Lecturer and Postdoctoral Fellow, Faculty of Law, Lund University
Author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in Europe (Cambridge University Press, 2017). Currently working on a postdoctoral project entitled ‘Positive Obligations under the ECHR’
I certainly agree with Dr. Laurens Lavrysen’s assessment that the concept of positive obligations has remained undertheorized in the existing literature and in this respect, his book constitutes an invaluable contribution aimed at filling the gap. There is much in Lavrysen’s Human Rights in a Positive State for human rights scholars, lawyers, students and both national and international judges to engage with and enjoy. The book offers an impressive review of recent judgments and demonstrates an excellent analytical rigor in its efforts to extract relevant principles and structure these in a clearer analytical framework. In this contribution, I would like rather focus on two issues: the analytical distinction between qualified and unqualified rights and, as related to the above, the proximity requirement, namely the proximity between State conduct and the harm sustained by the individual.
In comparison with the already existing literature on the topic, one of the distinguishing features of Lavrysen’s book is its general approach to positive obligations. He does not limit its analysis to specific articles or to some specific areas of the case law (i.e. environmental protection, domestic violence etc.). The book does however have a stronger focus on qualified rights under the ECHR (Articles 8-11). On the one hand, the author explicitly recognizes this and at some points in the chapters he rather bluntly states that from now on he will discuss only qualified rights. On the other hand, however, the book also appears to encompass unqualified rights (for example cases under Article 3 and 4; cases under Article 2 are also included, the latter can be subject to limitations since not every deprivation of life amounts to violation of the right to life under the ECHR; yet, together with Article 3 and 4, the Court has defined Article 2 as ‘fundamental provision’ ‘enshrining basic values of the democratic societies making up the Council of Europe.’ ).
At certain points in the text there is therefore unclear swing between absolute and not absolute rights. For example, on page 238 the author concludes that ‘… the strength of positive obligations under these provisions is arguably not as problematic in this area [unqualified rights] as, for example, under Article 8-11.’ However, a review of the preceding sections of the book leaves the reader with the impression that the above quoted statement remains unsubstantiated. Lavrysen might be correct that indeed it is not that problematic, but I remained wondering how he has demonstrated this to the reader. For example, in Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in Europe (Cambridge University Press, forthcoming 2017), one of the issues which I raise is the application of positive obligations under Article 4 (slavery, servitude, forced labour) in relation to migrants and I warn that states’ immigration control interests (irrespective of whether these interests refer to protection of the external borders or immigration control measures that affect the lives of migrants inside the state territory) should not be allowed to permeate the analysis as to the rigor of states’ positive obligations. Therefore, there might be areas where the strength of positive obligations is problematic.
The above mentioned oscillation between these two groups of rights raises some questions when Lavrysen discusses in Chapter III the relevant principles and tests, namely ‘the knowledge condition’, proximity, effectiveness and proportionality. Here I would like to comment on the issues of proximity. Proximity implies some nexus between the harm and omission by the State. Lavrysen’s discussion on proximity is very valuable because, in my opinion, this has been a generally neglected area of the case law. Lavrysen argues that the Court does not apply a clear notion of causality and he convincingly points out that ‘for this reason it is preferable to label the relationship discussed here in terms of proximity rather than in terms of causality.’ (page 140).
I think, however, that it is useful to make the following analytical distinction when it comes to proximity between harm and state conduct, a distinction which relates to the distinction between qualified and unqualified rights. First, linking harm with state conduct at the general level. This relates to the automatic triggering of positive obligation under such Articles as 2, 3 and 4. Every time when the definitional threshold of these provisions is met, positive obligation are automatically of relevance. For example, a general proximity which is presumed is that criminalization of abusive conduct will have preventing functions. The obligation of, for example, taking protective operation measures will be also automatically of relevance. In addition, as the Court has framed it in Öneryildiz v. Turkey the positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction ‘must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake.’ It has also added that ‘[t]he positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life’. In this sense, it can be argued that these rights are ‘absolute’ because generally the state is under the obligation to ensure them by criminalizing, adopting effective regulatory framework extending beyond the area of criminal law, taking protective operation measures.
The challenge in these cases is linking the specific harm sustained by the applicant with the alleged failure. Lavrysen also observes this: ‘proximity consideration typically arise in the context of linking an alleged failure to comply with a positive obligation to a particular harm, rather than in the context of determining whether such positive obligations exist in the first place.’(page 138). He observes that in relation to qualified rights, the Court seems to adopt a different approach and criticizes this difference: ‘it must be noted that under Article 8 (the right to respect for private life) and 1 Protocol 1 (right to property), the Court has occasionally put the cart before the horse by […] considering proximity as a threshold requirement to determine the existence of positive obligations themselves [emphasis added].’ (page 145). By way of example, he discusses the case of Botta, in which the Court held that positive obligations under Article 8 arise in case of ‘a direct and immediate link between the measures sought by an applicant and the latter’s private and/or family life.’ What is missing here is consideration as to why the Court applies a different approach and whether this approach is justified. On what occasions does the Court ‘put the cart before the horse’? For example, the indeterminacy of the notion of private and family life clearly has a significant role to play here. As a consequence, the Court eschews making general and structural conclusions that positive obligations are automatically triggered in all circumstances where private and family is affected. My impression is, however, that there are certain more established areas of the case law under Article 8 where the Court does not hesitate to automatically consider positive obligations. An example to this effect will be environmental pollution.
As a final point, it will be perhaps useful to more seriously consider how the tests of proximity, knowledge and reasonableness relate to each other. For example, in relation to harm which is more proximate to state conduct, it will be easier to argue that no unreasonable burden will be imposed upon the State by requiring it to protect. Thus, in Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in Europe (Cambridge University Press, forthcoming 2017) I argue that the context of abuses against migrants this proximity is very solid. While it is indeed private parties, i.e. employers etc., who subject migrants to abuses, it is ultimately the state which structures these relationships. In the light of the solidity of the proximity element, the test of reasonableness has hardly any place.
 Makaratzis v. Greece, [GC] App.No.50385/99, 20 Dec 2004, para.56 (in relation to the right to life). Pretty v. the United Kingdom, App.No.2346/02, 29 April 2002, para.37 ‘the Court’s case law accords pre-eminence to Article 2 as one of the most fundamental provisions of the Convention.’
 The question of the actual deterrent effect of the criminal law has never been profoundly discussed by the ECtHR. In the ECtHR judgments, it is simply assumed that the establishment of criminal offences can act as deterrence. See V Stoyanova, ‘Article 4 of the ECHR and the Obligation of Criminalising Slavery, Servitude, Forced Labour and Human Trafficking’ 3(2) Cambridge Journal of International and Comparative Law (2014) 407, 414. For this reason in her Concurring Opinion in M.C. v. Bulgaria Judge Tulkens has voiced a note of caution: ‘I consider that criminal proceedings should remain, both in theory and in practice, a last resort or subsidiary remedy and that their use, even in the context of positive obligations, calls for a certain degree of “restraint”’.
 See, for example, Rantsev v. Cyprus and Russia, para.286, where under the section ‘General principles’, the court states ‘As with Articles 2 and 3 of the Convention, Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking. In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention.’
 This should be understood without prejudice to the application of reasonableness consideration when it needs to be determined whether the state has failed in its protective duties in the specific case. The application of a reasonableness test cannot be erroneously viewed as way of undermining the absolute nature of the rights enshrined in, for example, Article 3 and Article 4(1) of the ECHR. It cannot be expected that the state is under an absolute obligation to protect every concrete individual from any possible abuse.