Skip to main content Accessibility help
×
Hostname: page-component-7c8c6479df-24hb2 Total loading time: 0 Render date: 2024-03-29T09:50:28.912Z Has data issue: false hasContentIssue false

Chapter 5 - Deconstructing the Dichotomy

Published online by Cambridge University Press:  15 December 2017

Get access

Summary

In the previous chapter, we have seen that the choice of examining a case from the viewpoint of positive or negative obligations has consequences for the Court's legal reasoning and legal methodology, reflected in a more deferential and less rigorous approach where positive obligations are concerned.

Under the legal deconstructive method, described above in the introductory chapter, these differences could be considered as contributing to the “privileging” of negative over positive obligations. Examples of such “privileging” are the fact that positive obligations are considered to be something “exceptional” as opposed to the “self-evident” negative obligations, which are considered “essential” to the Convention system; that the Court considers domestic authorities as relatively better placed to determine what is required in order to comply with their obligations in the area of positive obligations than in the area of negative ones, and that it consequently grants more deference where positive obligations are concerned than where negative ones are; that adjudicating positive obligations is presumed to have more detrimental polycentric effects than the adjudication of negative ones; and that the Court applies an implicit presumption of Convention compliance in cases of positive obligations as opposed to an implicit presumption of Convention violation in cases of negative ones.

Now such “privileging” of negative over positive obligations has been established, the next step in applying the legal deconstructive approach set out above is to proceed to the deconstruction of the dichotomy, by rethinking the relationship between the categories of positive and negative obligations. At the end of the previous chapter, I have critically scrutinised the normative assumptions underlying the “privileging” of negative over positive obligations. I have held that it is inconsistent for the Court to, on the one hand, consider positive obligations to be “inherent” in the Convention, but on the other hand to construct them as something “exceptional”. I have also argued that the view that positive obligations are categorically liable to have more detrimental polycentric effects than negative ones is simply an assumption that is not supported by the facts. Finally, the views that domestic authorities are necessarily “better placed” in this area and that the status quo ante is an adequate point of comparison were dismissed for lacking the necessary justification.

Type
Chapter
Information
Human Rights in a Positive State
Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights
, pp. 241 - 308
Publisher: Intersentia
Print publication year: 2016

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×