Vladislava Stoyanova
Senior lecturer
The Disjunctive Structure of Positive Rights under the European Convention on Human Rights
Author
Summary, in English
The European Court of Human Rights (ECtHR) has reiterated that states have discretion regarding what means to use to fulfil their positive obligations under the European Convention on Human Rights (echr). Given the "wide range of possible measures" that could be taken to ensure compliance with positive rights, these rights have a disjunctive structure since an omission has no definitive counterpart. This article examines how the ECtHR deals with the disjunctive structure of positive rights and how it addresses alternative protective measures that could have been extended. In order to identify the main points of contention, I first draw on legal-theoretical literature that has grappled with the structure of positive rights. I then examine what the Court actually does when it adjudicates positive obligation cases under qualified and unqualified rights. I analyse how and why the review endorsed in the ECtHR's judgments diverges from or converges with the theoretical model.
Department/s
- Human Rights Law
- Public International Law
- Department of Law
- Migration Law
Publishing year
2018
Language
English
Pages
344-392
Publication/Series
Nordic Journal of International Law
Volume
87
Issue
3
Document type
Journal article review
Publisher
Brill
Topic
- Law (excluding Law and Society)
Keywords
- disjunctive structure of positive rights
- European Convention on Human Rights (echr)
- positive obligations
- proportionality
Status
Published
Project
- Positive Obligations under the European Convention on Human Rights: More Predictability through Better Legal Reasoning
Research group
- Human Rights Law
- Public International Law
- Migration Law
ISBN/ISSN/Other
- ISSN: 0902-7351