The Disjunctive Structure of Positive Rights under the European Convention on Human Rights

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Abstract

The European Court of Human Rights (ECtHR) has reiterated that states have discretion regarding what means to use to fulfil their positive obligations under the European Convention on Human Rights (echr). Given the "wide range of possible measures" that could be taken to ensure compliance with positive rights, these rights have a disjunctive structure since an omission has no definitive counterpart. This article examines how the ECtHR deals with the disjunctive structure of positive rights and how it addresses alternative protective measures that could have been extended. In order to identify the main points of contention, I first draw on legal-theoretical literature that has grappled with the structure of positive rights. I then examine what the Court actually does when it adjudicates positive obligation cases under qualified and unqualified rights. I analyse how and why the review endorsed in the ECtHR's judgments diverges from or converges with the theoretical model.

Original languageEnglish
Pages (from-to)344-392
Number of pages49
JournalNordic Journal of International Law
Volume87
Issue number3
DOIs
Publication statusPublished - 2018

Subject classification (UKÄ)

  • Law (excluding Law and Society)

Keywords

  • disjunctive structure of positive rights
  • European Convention on Human Rights (echr)
  • positive obligations
  • proportionality

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