Human Rights in a Positive State: Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights

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.