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 5 - Deconstructing the Dichotomy
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
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 StateRethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights, pp. 241 - 308Publisher: IntersentiaPrint publication year: 2016