Framing Positive Obligations under the European Convention on Human Rights Law: Mediating between the Abstract and the Concrete

Summary, in English

This article examines positive obligations under the European Convention on Human Rights from the perspective of the level of concreteness chosen for their framing. This level is essential for understanding whether and how the analytical distinction between the existence of an obligation and the breach of this obligation can be applied. The level of concreteness is an important conceptual framework for examining positive obligations because it has an impact even on the possibility of making an assessment as to whether the State has breached the obligation, and on how this assessment is performed in the reasoning. The Grand Chamber judgment in Kurt v Austria is used to illustrate how positive obligations can be framed both in more abstract and more concrete terms, and how the reasoning mediates between the abstract and the concrete. The more it tilts towards a concrete formulation of the obligation, the more the Court appears to assume the role of a rule-maker, which is in tension with the principle that States have discretion as to what concrete measures to take to fulfill their positive obligations.

• Author: Vladislava Stoyanova
• Department/s: Department of Law; Human Rights Law; Migration Law; Public International Law; LU Profile Area: Human rights
• Publishing year: 2023
• Language: English
• Publication/Series: Human Rights Law Review
• Volume: 23
• Issue: 3
• Links: http://dx.doi.org/10.1093/hrlr/ngad010
• Document type: Journal article
• Publisher: Oxford University Press
• Topic: Law
• Keywords: European Convention on Human Rights, positive obligations, Kurt v Austria, omissions, risk assessment, Osman test; Human rights; Mänskliga rättigheter
• Status: Published
• Research group: Human Rights Law; Migration Law; Public International Law
• ISBN/ISSN/Other: ISSN: 1461-7781