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Portrait of Vladislava Stoyanova. Photo.

Vladislava Stoyanova

Senior lecturer

Portrait of Vladislava Stoyanova. Photo.

Common Law Tort of Negligence as a Tool for Deconstructing Positive Obligations under the European Convention on Human Rights

Author

  • Vladislava Stoyanova

Summary, in English

This article examines how the common law tort of negligence as developed in the United Kingdom can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umbrella of positive obligations under the European Convention on Human Rights (ECHR). Both frameworks, common law and ECHR, aim to delimit the circumstances where responsibility for omissions can be found and have similar conceptual basis of protection in that they protect fundamental interests. However, in the context of common law certain analytical elements have been more thoroughly considered and more clearly articulated. These elements are: the distinction between a duty and a breach of duty; the level of foreseeability of harm; the proximity between the state and the person who has suffered harm because of an alleged omission; the reasonableness of imposing a duty; and the causation between the harm and the alleged omission. Two main arguments emerge from the juxtaposition of the ECHR analysis against the common law. First, by failing to explicitly articulate and distinguish certain analytical elements, the ECHR positive obligation judgments offer little general guidance as to the limits of responsibility in a more principled fashion. Second, the analytical inquiry applied when adjudicating positive obligations is in tension with the idea of the correlativity between rights and obligations.

Department/s

  • Human Rights Law
  • Public International Law
  • Department of Law
  • Migration Law

Publishing year

2020

Language

English

Pages

632-655

Publication/Series

International Journal of Human Rights

Volume

24

Issue

5

Document type

Journal article

Publisher

Routledge

Topic

  • Law

Keywords

  • Human rights
  • Negligence
  • ECHR
  • Common law
  • Positive obligations
  • Mänskliga rättigheter

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: 1744-053X