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- Title
Beyond Acts and Omissions — Distinguishing Positive and Negative Duties at the European Court of Human Rights.
- Authors
Wibye, Johan Vorland
- Abstract
The article examines methods of distinguishing positive and negative duties within the provisions of the European Convention of Human Rights as applied by the European Court of Human Rights. It highlights problems with tying positive duties to acts and negative duties to omissions, and sets out a supplemental delineation method when those problems lead to systematic classification errors: duties sort as positive if they have the capacity for multiple fulfilment options and negative if they only allow one fulfilment option. These delineation criteria allow for a more consistent reconstruction of case law and point to a causal mechanism for alleged asymmetries in proportionality review and margins of appreciation. Lastly, there are revisionary implications for human rights scholarship. Judgments have been sorted as positive rights cases because they feature a requirement that states commit to legislative amendment, yet performative acts of amendment may be continuous with underlying negative duties.
- Subjects
DUTY; EUROPEAN Court of Human Rights; EUROPEAN Convention on Human Rights; PROPORTIONALITY in law; HUMAN rights; MARGIN of appreciation (International law)
- Publication
Human Rights Review, 2022, Vol 23, Issue 4, p479
- ISSN
1524-8879
- Publication type
Article
- DOI
10.1007/s12142-022-00663-3