This project studies the application of the concept of ‘positive obligations’ by the European Court of Human Rights.
Supervision: Prof. Dr. Eva Brems
Researcher: Laurens Lavrysen
Sponsored by FWO (2011-2015)
Whereas traditionally human rights have been considered as primarily giving rise to so-called ‘negative’ obligations on States to refrain from themselves violating human rights, it is now widely accepted that human rights necessarily also give rise to ‘positive’ obligations on the State to take active steps to ensure these rights. Nonetheless, both in theory and practice, the exact boundaries of these positive obligations are fiercely contested. This research focus on the practice of the European Court of Human Rights in applying positive obligations under the European Convention on Human Rights. The European Court has explicitly refrained from developing a theoretical account of positive obligations, opting instead for a more pragmatic approach in which it has decided upon positive obligations cases on a case-by-case basis. As a result, the Court’s positive obligations case law has been widely criticized for lacking foreseeability. This FWO (Research Foundation Flanders) funded research aims to map the Court’s positive obligations jurisprudence, to provide a theoretical underpinning that best fits the nature of ECHR rights as interpreted by the Court and to reconstruct the Court’s positive obligations jurisprudence in order to orient it in line with such theoretical conception. Such reconstructed account of positive obligations under the ECHR is meant to provide more guidance as to the application of this concept in order to ultimately facilitate courts in more adequately protecting human rights in Europe.
