The Positive Obligations of the State under the European Convention of Human Rights

Dimitris Xenos

• Publisher: Routledge
• Year: 2012
• Print ISBN: 9780415668125
• eBook ISBN: 9781136664434
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The system of the European Convention of Human Rights imposes positive obligations on the state to guarantee human rights in circumstances where state agents dot not directly interfere. In addition to the traditional/liberal negative obligation of non-interference, the state must actively protect the human rights of individuals residing within its jurisdiction. The liability of the state 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 their human rights in all circumstances in which they are relevant. In that regard, positive obligations herald the most advanced review of the state's business ever attempted in international law.

The book undertakes a comprehensive study of positive obligations: from establishing the legitimacy of positive obligations within the system of the Convention to their practical implementation at the national level. Analysing in depth legal principles that pervade the whole system of the Convention, a coherent methodological framework of critical stages and parameters is provided to determine the content of positive obligations in a consistent, predictable and realistic manner.

This study of the Convention explains and critically analyses the state's positive obligations, as imposed by the European Court of Human Rights, and sets out original proposals for their future development. The book will be of interest to those who study, research or practice public law, civil rights and liberties or international/European human rights law.

1 The Working Base

1.1 What’s Right and What’s Wrong with Positive Obligations

The discourse of the protection of human rights sixty-one years after the signing of the European Convention of Human Rights (hereinafter, the Convention)¹ is now placed within a normalised era of European history in which the state acts as their principal protector and guarantor. These are the times in which human rights are increasingly advertised in political manifestos and their established status is reflected in university study packages and job opportunities both linked to the growing supermarket of governmental, intergovernmental, international or non-governmental human rights organisations.² In this main-stream climate, the obvious and fundamental functions of the state, and by extension, of law, are re-discussed, rediscovered and restated in order to secure a normal starting point. As Phedon Vegleris recalled in the early 1970s:

[i]t is also undeniable that the protection of the individual from attacks on his liberties by other private individuals constitutes one of the normal functions of the law, particularly civil and criminal law, and an essential task of the executive and judicial authorities. And it is a historical fact that this function of the law was in operation and had reached a certain degree of stability even before the rights of the individual vis-à-vis the State were proclaimed, or means of defence against agents acting on behalf of the State were instituted.³

Viewed from the neutral and normal point of a genuine democracy, human rights violations by the state are the exception rather than the rule, and therefore the time has come to reverse the perspective from which the human rights discourse is made, namely the classical liberal view of the state’s non-interference (negative obligation).⁴

In response to a new generation of human rights claims pushed forward by a new generation of Europeans, who have been brought up free from the complexes of the past, the Convention has passed to its complete phase under which entitlement to human rights means entitlement to enjoy human rights and not merely an entitlement to their non-violation by state agents. States are perceived as having ‘inherent’ positive obligations to protect and guarantee human rights within their territory. The Convention imposes positive obligations on the state to actively protect the human rights of individuals against acts of interference from other private parties. To the extent that it is the state which has the sovereign power and ability to regulate all activities operating within its jurisdiction, its indirect responsibility can reasonably be raised when human rights are violated by private parties.

Departing from the point that it is ‘a historical fact’ that the active protection of individuals from acts of interference of other individuals constitutes one of the normal and classic functions defining the state,⁵ the subject matter of positive obligations appears basic at a first glance. There are, however, important questions on important details. Moving from general to specific issues, it is asked whether protection exists in the particular context of private interactions or whether protection is effective through regulation and procedural safeguards. Of importance, also, is the question of when human rights protection is provided and on whom the initiative of protection depends. If protection in a given context has been provided by the state, it pays to see the background/history of how protection of human rights was pressed by social forces and how long it took to acquire its current legal status.

By contrast, the uniqueness of positive obligations is that the active protection of human rights is demanded right now or should have already been provided for by the state’s mechanism in circumstances in which there are known human rights issues. More importantly, the initiator of this demand is not the elected member of the Parliament, but the ordinary individual. In this account, positive obligations impose real constitutional priorities on the state’s business in the form of the active protection of human rights. Other means of asserting protection of human rights, such as street-level pressure, collective actions, campaigns of civil society groups, lobbying work and modern institutionalised monitoring systems, remain usual and helpful avenues. But the emergence of the ordinary individual, the atomic unit, as the initiator of the constitutional claim (in legally binding terms) of the protection of human rights in contexts in which private individuals interact, has no precedent in the political history of humankind.

To illustrate this point, we can look at those cases from the jurisprudence of European Court of Human Rights (hereinafter, the Court) in which states have been found in breach of their positive obligation to regulate and effectively implement health and safety standards for industrial activities, whose operation violated the human rights of some individuals.⁶ The message, therefore, is that an industrial activity (set up by private or public funds) must operate under health and safety standards. This issue, however, is basic, for the debate and campaign for safety standards in industrial sites is not new. Rather, the novelty of the message of positive obligations is the one single individual who is able to pursue their grievance within the system of the Convention and oblige a whole state, this most powerful and structured organisation, to prioritise its work and guarantee the protection of human rights in the various contexts in which private individuals interact.

Positive obligations exist because the binding system of the Convention exists. Therefore, the participatory ability of the ordinary individual to initiate the constitutional claim exists only because of the Convention. The current study covers the state of law on positive obligations, as has developed in the system of the European Convention of Human Rights. Previous major studies on positive obligations have covered the jurisprudence until the year of 2002, but there have been many and important developments since that time. A number of these developments concern positive obligations in circumstances where various individuals claim assistance from the state because they cannot enjoy human rights due to their own circumstances of personal vulnerability (physical and psychological condition). This is an important and considerable extension of the scope of positive obligations, and that of the Convention, which can only be explained by the fact that the ordinary individual has become increasingly aware of their participatory ability to initiate the constitutional claim of human rights protection at the supranational level of the Convention. As, generally speaking, the protection of human rights is not only restricted to acts of interference, positive obligations are now debated and asserted across the board.

However, the problem with positive obligations is that their scope appears open-ended. As the study of the case-law will show, the Court does not set general conceptual limitations for its intervention to review the manner by which human rights standards are safeguarded in private interactions, other than those linked to the conceptual scope of the Convention rights which are often described and interpreted in equally broad terms. In principle, positive obligations can be claimed everywhere, a fact that creates problems as well as opportunities. Where positive obligations concern direct assistance to vulnerable individuals (i.e. an act of interference from a given source is absent), limitations are considered in relation to the state’s margin of appreciation, whose evaluation is not always clear. The list of problems with positive obligations is long, if one takes a close look at how they have developed in the jurisprudence. Often, problems do not exist separately but come as a result of a previous problem that arises in relation to a legal test or principle. In this regard, our study has to give due weight to the most important and preliminary questions. Problems may also arise from lack of focus on what is really at stake.

The underlying interests of this study lie in the wider effects of positive obligations, whose application in the system of the Convention produces two consecutive results. In particular:

1 Positive obligations secure the participatory position of the ordinary individual to initiate the constitutional question of the active protection of human rights in all areas in which they are relevant (i.e. beyond direct interference by state actors), thereby changing fundamentally the structure of democratic governance.

And, as a consequence of the first result:

2 They expand the intensity of review of the states’ system at lengths not previously imagined or attempted by any national or international law institution, through the empowerment of their nationals who are now able, for the first time, to be personally engaged in a continuous vigilance and re-discussion of the standards of human rights protection.

It should be noted, however, that the open discussion on positive obligations is not made over the above-stated results. European judges are renowned for their low profile and cautiousness with states’ sensitivities about the ever-decreasing national sovereignty that unavoidably results from the interaction of national legal systems with European human rights law. It is to their credit that they have always managed to sense carefully the international climate and the changing social dynamics in various corners of Europe before moving to modify steadily and progressively the intensity of their review on the states’ legal system. There are numerous statements by the Court on the state’s margin of appreciation and on the optional choice of the domestic incorporation of the Convention but, in reality, what is actually observed is a considerable expansion of positive obligations and numerous rulings against the states that we present and discuss in the following chapters.

The whole debate on positive obligations over the last thirty years is being held in the neutral technical language of European human rights law. If the scope of positive obligations has to be curtailed or expanded, it has to be made in technical terms, because their wider effects are not openly stated so that there can be any meaningful elaboration or challenge. It is important, however, for the reader of this study to appreciate the significance of the issue with which we deal here from an early stage.

The current study of positive obligations concentrates on the technical points of law, save for a brief discussion of the object and purpose of the Convention in a sub-section of this introductory chapter. We have set two principal aims: first, to explain the content of positive obligations in accordance with their potential to extend and further improve the protection of human rights in a wide range of circumstances in which the state does not directly interfere; second, to transpose the content of positive obligations at the domestic level through procedural safeguards and institutional access for the participation of the ordinary individual so as to guar...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Dedication
• Contents
• Table of cases
• Table of legal instruments
• Foreword
• Preface
• List of abbreviations
• 1 The working base
• 2 The application and development of positive obligations
• 3 Protection in the absence of interference
• 4 Access points of domestic implementation
• 5 Summing up
• Bibliography
• Index