Book contents
- Frontmatter
- Acknowledgements
- Contents
- Chapter 1 Introduction
- Chapter 2 Typologies of Positive Obligations
- Chapter 3 Relevant Principles and Tests
- Chapter 4 Comparison Positive vs. Negative Obligations
- Chapter 5 Deconstructing the Dichotomy
- Chapter 6 Transforming the Court's Legal Methodology
- Chapter 7 General Conclusion
- Bibliography
- Corpus of Cases
Chapter 2 - Typologies of Positive Obligations
Published online by Cambridge University Press: 15 December 2017
- Frontmatter
- Acknowledgements
- Contents
- Chapter 1 Introduction
- Chapter 2 Typologies of Positive Obligations
- Chapter 3 Relevant Principles and Tests
- Chapter 4 Comparison Positive vs. Negative Obligations
- Chapter 5 Deconstructing the Dichotomy
- Chapter 6 Transforming the Court's Legal Methodology
- Chapter 7 General Conclusion
- Bibliography
- Corpus of Cases
Summary
The present chapter is a first of three chapters which undertake an analytical inquiry into the Court's positive obligations case law, which will serve as a basis for the final chapters which are more critical and normative in nature. In this chapter, I will start this inquiry by mapping the Court's positive obligations case law using a number of broad analytical classifications that have been identified in the literature, in order to provide an overview of the types of obligations recognised by the Court as well as the areas of the case law in which the Court has done so. The present chapter is not meant to give an exhaustive descriptive account of the Court's positive obligations jurisprudence, but rather aims to give an analytical overview of the kinds of positive obligations recognised by the Court. For this reason, the categories within these typologies will not be illustrated with as many examples as possible but by means of notable examples from the Court's case law, where possible with a preference for the most authoritative ones. This chapter introduces the reader to the diversity that exists within the Court's positive obligation jurisprudence and serves as a basis for further discussion in the subsequent chapters, since differences in legal methodology and legal reasoning within the Court's positive obligations case law often arise along the boundaries of such typologies.
Before elaborating on those typologies, it is worthwhile mentioning a first important categorisation attempt. Starmer identified five broad positive obligations under the Convention:
“(1) A duty to put in place a legal framework which provides effective protection for Convention rights.
(2) A duty to prevent breaches of Convention rights.
(3) A duty to provide information and advice relevant to a breach of Convention rights.
(4) A duty to respond to breaches of Convention rights.
(5) A duty to provide resources to individuals to prevent breaches of their Convention rights.”
With his categorisation, Starmer has succeeded in covering most areas of the Court's positive obligations case law, and therefore his categorisation is a useful starting point for the present discussion. However, in developing his categorisation Starmer seemed to have been more concerned with clustering cases for the purpose of providing a descriptive account of positive obligations, rather than with developing “neat” analytical distinctions.
- Type
- Chapter
- Information
- Human Rights in a Positive StateRethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights, pp. 45 - 130Publisher: IntersentiaPrint publication year: 2016
- 1
- Cited by