THE HORIZONTAL DIMENSION OF HUMAN RIGHTS IN THE CONVENTION TEXT

The most common understanding of human rights or fundamental rights is based on negative obligations. Negative obligations impose obligations on states to restrain from interfering in the fundamental rights of its citizens. From this perspective, the state cannot kill its citizens or interfere in the privacy of its citizens, etc. Positive obligations, on the other hand, are obligations that oblige states to act to protect human rights. Within the field of positive obligations, there are obligations for the state to protect the human rights of private persons against the interference of other private persons. These obligations are called the positive obligation to protect human rights in horizontal relations. To grasp a better understanding of these types of obligations, the right to life can be illustrative. Seen from the perspective of negative obligations, the right to life stipulates that the state cannot kill its citizens. If the state actively kills persons, it violates its human rights obligations. But the right to life can be threatened by factors other than the state. The right to life can be threatened by shortages of food or by disease. Thus, from the perspective of positive obligations, the right to life imposes an obligation on states to provide basic health and food supplies to its citizens. Moreover, the right to life can also be threatened by private persons. People can violently or negligently kill one another. From the perspective of positive obligations of the state to protect human rights in horizontal relations, this has the consequence that the state must provide instruments of criminal and private law to prevent and cure violations of the right to life in order to fulfil its human rights obligations.

Although one might say that the protection of human rights in horizontal relations is the primary function of the state, it has never been self-evident. Indeed, the primary focus of the ECHR has always been on negative obligations and not on positive obligations, let alone on positive obligations to protect human rights in horizontal relations. Nevertheless, there are some indications in the Convention that human rights have a horizontal dimension. A clear indication can be found in the limitation clauses in Arts 8, 9 and 10 ECHR. These clauses stipulate that Convention rights can be restricted in order to protect the rights and freedom of other persons.