ECHR BLOG: Public Lecture on Optimistic Obligations below the ECHR

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On 10 March, the University of Liverpool is hosting an online public lecture by Dr. Vladislava Stoyanova on Positive Obligations under the European Convention on Human Rights – Within and Beyond Boundaries. Here is a brief description of the event:

‘The development of positive obligations has been one of the hallmarks of the work of the European Court of Human Rights (ECtHR or the Court) in interpreting the European Convention on Human Rights (ECHR). Various issues from various spheres of life have been reviewed by the Court as involving possible breaches of positive obligations. Given the extensive regulatory functions of the State and the enormous breadth of state activities, any harm could potentially be a ground for making an argument that the State failed to fulfil its positive human rights obligations by failing to prevent or mitigate harm or risk. As a result, it is rather unclear under which conditions positive obligations may be triggered and how far-reaching they may be, given how difficult it is to draw the boundaries of state responsibility for omissions. The difficulties in determining and delimiting the role of the State in the contemporary society contribute to this uncertainty.

The lecture will address these challenges by identifying the key analytical issues that need to be considered in determining whether a State is responsible under the ECHR for omissions. The focal question is whether and how omissions by the State can be conceptualised into failures to fulfil positive obligations. In addition to this technical analytical question, the project also reflects upon what is at stake for the political community when the triggering, the content, and the scope of positive human rights obligations are determined. A central question is then how the search for a balance between intrusion and restraint by the State, between protection and freedom from invasion, defines this community and pulls the analysis of state responsibility for omissions in different directions.

One of these key analytical issues is the competition between obligations. In particular, positive human rights obligations can compete, and even conflict, with other human rights obligations, both positive and negative. This is important since protection might lead to diversion of resources, potentially in breach of other positive obligations, and unjustifiable forms and levels of intrusiveness and coercion that might be in breach of negative obligations. The latter can be particularly disturbing in light of the tension between obligations that constrain state power (negative obligations) and obligations that mandate state power or demand its more expansive exercise (positive obligations). These tensions are relevant all the time when positive obligations are at stake, although they not always explicit in the Court’s reasoning. The tensions imply that the more the State protects certain interests, the less it might be able to protect and the more it might interfere with other interests.

The specific concern will be then how competing human rights obligations owned by the State need to be taken into consideration in the determination of the scope and the content of positive obligations, so that a possible protective overreach can be prevented. The speaker will first explain that obligations need to be specified so that tensions and competitions between obligations become cognizable. Once competing obligations become cognizable, they should be denoted a distinctive and special role (in contrast to competing general public interests) in the assessment of the reasonableness of the positive obligations. Then it will discuss considerations that can be relevant to addressing the tension between positive obligations and other (both positive and negative) human rights obligations corresponding to absolute, strictly qualified and qualified rights. These considerations include respecting the equal moral status of each affected individual, the relative importance of the affected interests grounding rights as related to the relative importance of the corresponding obligations, whether actions or omissions form the content of the obligations, and the determinacy of the harm and the affected individuals. Finally, while acknowledging the difficulties, it is proposed that the obligations can be farmed in such a way in terms of content and scope, so that accommodation is possible.’

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3 Comments

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