Causation: Why and How for Establishing Breach of Positive Obligations under the European Convention on Human Rights?

Summary, in English

The judgments of the European Court of Human Rights manifest a mixture of factual and legal causation, when the Court reasons whether omissions should be the basis for breach of positive obligations under the European Convention on Human Rights. However, considerations that can be generally framed as normative govern the reasoning, which implies domination of legal causation. Yet, the Court still invokes factual causation to maintain an appearance that its judgments are based on rationality. Factual causation is invoked for creating the impression that the Court does not simply invent positive obligations. The causal inquiry with its mixture of factual and normative elements is ultimately an inquiry about the existence of positive obligations, about the interpretation of their content and scope, and about the determination of breach. By invoking explicitly or implicitly causal links between harm and omissions, the Court therefore determines the existence of obligations and makes conclusions about their breaches.

• Author: Vladislava Stoyanova
• Editor: Vladislava Stoyanova; David McGrogan
• Department/s: Department of Law; Human Rights Law; Migration Law; Public International Law; LU Profile Area: Human rights
• Publishing year: 2025
• Language: English
• Publication/Series: From Protection to Coercion: the Limits of Positive Obligations in Human Rights Law
• Full text: - 325 kB; Download statistics
• Document type: Book chapter
• Publisher: Hart/Bloomsbury
• Topic: Law
• Keywords: Public internationa law; Human rights; Folkrätt; Mänskliga rättigheter
• Status: Inpress
• Research group: Human Rights Law; Migration Law; Public International Law