Positive Obligations in Crisis

Dr Natasa Mavronicola is Reader in Law at Birmingham Law School, University of Birmingham. She has written extensively on the right to life and the right not to be subjected to torture or to inhuman or degrading treatment or punishment. She is co-editor of Lavrysen & Mavronicola (eds), Coercive Human Rights: Positive Duties to Mobilise the Criminal Law under the ECHR, forthcoming with Hart Publishing (2020).

On the flip side of rights are wrongs. It is now indisputable that the State may wrong us as a matter of human rights law not only by actively mistreating us, but also by failing to protect us from certain harms. The European Court of Human Rights (ECtHR) boasts a formidable jurisprudence on positive obligations borne by States to protect persons within their jurisdiction from grave threats to our life or physical or mental integrity. It is important to understand and apply these appropriately to the current crisis, particularly as positive obligations to protect life are being actively invoked, in the context of the coronavirus pandemic, to justify extensive (coercive) measures across Council of Europe States.

In this short piece, focusing on positive obligations under the European Convention on Human Rights (ECHR), I want to underline the following: (a) the State bears positive obligations to protect, rather than coerce; (b) the State’s positive obligations do not extend to duties to act unlawfully under the Convention; and (c) positive obligations must be responsive to, and entail ancillary obligations to determine, the relevant context and risk.

My analysis here concerns Articles 2 and 3 of the ECHR, which enshrine the right to life and the right not to be subjected to torture or inhuman or degrading treatment or punishment respectively. It is well established that Article 2 ECHR requires States not only to refrain from arbitrary takings of life but also to safeguard the lives of those within their jurisdiction, and similarly that Article 3 ECHR requires States not only to refrain from ill-treatment but also to take certain steps to protect persons within their jurisdiction from grave harm or suffering. Positive obligations under the Convention are orientated towards providing ‘practical and effective protection’ of rights (Valiulienė v Lithuania, para 75; Rantsev v Cyprus and Russia, para 284). The overarching goal is therefore protection from harm.

Positive obligations encompass (see, eg, Volodina v Russia, para 77):

1. general, or framework, duties, requiring States to set up adequate legal provisions, implementation mechanisms, as well as other relevant structures, for protecting life and bodily or mental integrity;
2. operational duties, requiring States to take operational measures to protect persons at real and immediate risk to life or bodily or mental integrity, where the authorities know or ought to know of the risk;
3. investigative duties, requiring States to investigate credible complaints or suspected incidents of arbitrary loss of life or torture or inhuman or degrading treatment or punishment, including where these may engage the responsibility of the State by omission.

While the ECtHR is careful not to impose an ‘impossible or disproportionate burden’ (Osman v UK, para 116) on State authorities, the measures taken must be ‘reasonable’ and ‘adequate’ (Opuz v Turkey, paras 136 and 153 respectively). Adequacy can be a demanding standard, particularly in inviting assessment of whether the measures taken are sufficiently ‘practical and effective’. Crucially, positive obligations must be discharged without discrimination (Akandji-Kombe (2007), p. 58).

a)     Positive obligations to protect

That positive obligations are duties to protect may seem fairly obvious, but it is crucial to underline, not least in the context of State responses to this pandemic. This is because duties to protect are all too often and too readily translated into duties to coerce: to mobilise the sharp edge of the State and its law enforcement mechanisms as (purported) means of delivering protection (Lazarus (2012); Lavrysen & Mavronicola (2020)). Some coercive measures may well be considered reasonable and indeed necessary to protect life and bodily and mental integrity: consider criminal law provisions and enforcement in respect of domestic and sexual violence, for example. But coercive measures, even where they might be deemed necessary, are not sufficient to provide effective protection.

In the context of this pandemic, it is certainly tenable that States bear positive obligations to take certain ‘lockdown’ measures. Nonetheless, these are not exhaustive of the State’s positive duties to secure ‘practical and effective’ protection. States must also take general measures to establish the requisite legal framework, mechanisms, and structures to protect life and bodily and mental integrity, as well as operational measures to deal with real and immediate risks to life or bodily or mental integrity, including, as Elizabeth Stubbins-Bates points out, in ‘“dangerous” situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man-made or natural hazards’ (Stoyanovi v Bulgaria, para 61).

The measures taken should accordingly include adequate targeted protection (such as protective equipment) for persons who are put in harm’s way; but also, more generally, effective disaster-management planning, bolstering (emergency) healthcare provision, and securing effective access, on a non-discriminatory basis, to essential goods and services (Human Rights Committee, General Comment 36, § 26; see, further, Stubbins-Bates (2020); Coco and de Souza Dias (2020)). Importantly, if the protective orientation of positive obligations is to be taken seriously, States must also take reasonable steps to facilitate (compliance with) ‘lockdown’ measures, including by guaranteeing people’s livelihoods and sustenance, and to alleviate other risks that may arise or be exacerbated by the ‘lockdown’ measures. It is relevant to recall, in this regard, the UK judgment in Limbuela, which highlights that the Article 3 threshold is crossed when someone ‘is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life’ (R (on the application of Limbuela) v Secretary of State for the Home Department [2006] 1 A.C. 396 (HL), [7] (Lord Bingham)). Consequently, key elements of States such as the UK’s welfare-focused response to the pandemic, including initiatives to provide financial support for people who have lost their source of income, are not only sensible and ethical policy decisions, but amount to obligations under human rights law. Moreover, it is strongly arguable that more extensive measures are and will become necessary. In this regard, it is important to underline that, in respect of vulnerable persons or persons deprived of their liberty, States’ positive obligations to protect life and bodily and mental integrity are amplified (see, eg, Palmer (2009), 410-412).

b)    The legality limit on positive obligations

Measures taken to discharge States’ positive obligations are not only meant to be clearly orientated at protection, rather than coercion; they are also fundamentally bounded by legality within the ECHR (see, eg, Opuz v Turkey, para 129). What this means is that, while the imperative to protect individuals from grave harms is very strong and may justify or even require a range of ‘exceptional’ measures, it does not require or give licence to States to act in ways that are unlawful under the Convention.

This entails, in brief, the following:

• Positive obligations do not include duties to act in ways that are conclusively unlawful under the ECHR, such as inflicting torture or inhuman or degrading treatment or punishment. For example, a blanket policy of solitary confinement of persons in detention would not pass the legality test under the Convention.
• With respect to rights that may be lawfully infringed or derogated from, positive obligations may only extend to measures that amount to necessary and proportionate infringements on those rights, or that are strictly required by the exigencies of the emergency situation in circumstances of lawful derogation.

c)       Responding to context and risk

In order for the positive measures taken to be both reasonable and adequate towards providing effective protection, they should be responsive and tailored to the relevant – changing – context, and address the particular risks to life and to bodily or mental integrity at issue. At least two further implications flow from this in the current context:

• Measures taken in response to the coronavirus pandemic should be kept under regular and rigorous oversight and review capable of triggering necessary changes in response to changing circumstances.
• The circumstances and risk that inform general as well as operational measures include circumstances that are in the actual or constructive knowledge of the authorities (of which the authorities knew or ought to have known). This entails an obligation on State authorities to take measures that enable them to ascertain, and accordingly respond to, relevant circumstances (including by determining the actual incidence of coronavirus, through testing) and relevant risk(s). The State should therefore implement mechanisms and procedures and take all other reasonable steps to establish and respond to the changing landscape of the pandemic as well as its associated risks – including risks arising from or being exacerbated by measures taken to address this pandemic, such as the heightened risk of domestic violence.

Related to the importance of knowledge-driven responses, it is worth underlining that the investigative obligation is likely to be of substantial significance both during the pandemic and in its aftermath, not only for identifying and apportioning responsibility for arbitrary actions or failings, but also towards ensuring non-recurrence – in other words, averting ongoing or future abuses, misjudgements and/or omissions.

Conclusion

In this pandemic, we stand to be wronged by State authorities in a variety of ways, not least by omission. While State bodies might be quick to appeal to being duty-bound to save lives in justification of sometimes unprecedented coercive measures, we must not lose sight of positive obligations’ protective orientation, and must continue to hold States to account as regards the reasonableness and adequacy of their measures towards providing practical and effective protection. To this end, we should expect truly protective measures that are genuinely responsive to general threats as well as to real and immediate risks to life and bodily or mental integrity. It is also vital that we remember that positive obligations do not extend to duties to act unlawfully under the Convention. So while we should hold States to their obligations to protect us, continuous vigilance is needed to trace and hold States to the limits of what they can claim to be duty-bound to do to us rather than for us.