Author’s Response to the Reviews

I would like to thank Elena Abrusci, Maria Louiza Deftou, Vassilis Tzevelekos, Lea Raible, Mariana Ferolla Vallandro do Valle and Rick Lawson who contributed to the blog symposium by engaging with the book Positive Obligations under the European Convention on Human Rights (open access here). Prior to this symposium, the reactions to the book (already presented at different places, including Oxford and Oslo) have been mainly in two directions: first, the book has a beautiful cover, and second, as explained in the Preface, it has become notable that the book is devoted to my grandmother. In relationship to the second and as one former professor of mine shared with me, I have ‘retained that non-stereotype, human touch’. The help from my grandmother in terms of caring for my children, reveals my Eastern European background: grandparents have a key role in the lives of their grandchildren and great grandchildren. The acknowledgements to my grandmother and my parents also reveal that ultimately my work output can be only very partially causally linked to my own efforts. Whatever agency one exercises, there are many other relevant factors that determine and affect the outcome. In addition, the community context matters. Here I should also mention not only my family, but the excellent and supportive environment provided by the Faculty of Law, Lund University throughout the years.

This brings me to two fundamental questions addressed in the book: causation and the communitarian underpinnings of human rights law. The question of causation has been barely addressed in human rights law (for an analysis after the publication of the book, see here), which is surprising given that the invocation of positive obligations implies an argument that the State should be found responsible under the ECHR for omissions. The book tries to address this gap and I am happy with Vassilis Tzevelekos’ assessment that the analysis can have wider relevance in international law beyond the ECHR context.

I fully agree with Vassilis Tzevelekos’ position that ‘all positive obligations find themselves in a state of constant, latent conflict/competition with each other’ (my emphasis), an assessment that I should have indeed made much more explicit in the book. I would not use the word ‘conflict’ though for reasons explained on page 95 in the book with reference to the work of Zucca and Besson. In his contribution to the book symposium Vassilis Tzevelekos also very clearly underscores the economic cost of positive obligations. He very powerfully contrasts, on the one hand, the ‘endless’ areas and spheres of our lives where positive obligations exist (at a very abstract level, see here) with, on the other, the limited resources of the State to prevent harm or risk of harm. It is very difficult for a decision maker (such as the ECtHR) to assess how the extension of protection in fulfilment of positive obligations ‘blocks’ ‘funds for other (human rights protective) purposes’, to use Tzevelekos’ language that I find very suitable.

Me and Tzevelekos appear to be in agreement that the assessment of a breach of a positive is not made just with reference to the availability of resources. As the book explains, normative understandings about the role of the State in the organisation of the specific political community shape the reasoning regarding the standards of knowledge, causation and reasonableness (addressed in Chapters 2, 3 and 4). Lea Raible seems to be in agreement with me and Tzevelekos since in her review of the book she states that ‘assessing state knowledge and the integration of science in adjudication is not about facts alone but imbued with normative considerations’. What Tzevelekos clearly highlights is how normative understandings can relate to the difficult question of redistribution of resources.

An interesting nuance that Tzevelekos stresses in his review concerns the usage of presumptions by the Court. He notes that ‘courts transform the criterion from whether states have the necessary economic means to offer protection into a (rebuttable?) presumption that they do have them and a duty that they ought to have them.’ It would be interesting to investigate in the future in more detail what presumptions the Court utilises in which areas of human activities. The usage of presumptions can be linked with the question of evidence: what evidence, what burden and standard of proof is applied in the review of positive obligations. Such procedural issues can be an object of future research. The book (page 32) very briefly engages with the question of the burden of proof.

The type of margin of appreciation that the Court chooses to apply can affect the presumptions. A narrow margin of appreciation in its structural sense that implies higher scrutiny by the Court (see page 89 of the book on the distinction between the margin of appreciation in its structural sense and its substantive sense), can imply a presumption that the State should have the necessary resources to prevent harm in the context of the specific activity in question. Yet, the State might continue to have a wide discretion (a wide margin of appreciation in the substantive sense) as to how to use the resources. In this sense, it might be useful to distinguish between structural deference (structural margin of appreciation) and substantive margin of appreciation. As Elena Abrusci observes in her review of the book, the distinction between the two margins might be difficult to make. As she also correctly notes, wide range of choices how to use resources invites not only a wider substantive margin, but also a wider structural margin (and thus less scrutiny by the Court).

Presumptions and the choice of the degree of scrutiny affect the reasoning and the binary outcome of the judgment (i.e. violation or no violation of the positive obligation). Once a violation judgment is issued, however, a separate set of questions arises as to the choices that States have with regard to how they will execute the judgment so that they comply with Article 46 of the ECHR. As Deftou correctly observes in her review of the book, the more concretely any choices of measures are formulated in the judgment, ‘the heavier the ‘burden’ of the proper implementation of the Convention becomes for the States.’ While the book extensively engages with the question of choices of measures/alternatives and their specifications, the execution of judgments is not addressed. How States choose to execute judgments where a breach of positive obligations is found and how these choices might be affected by the specification of measures in the Court’s reasoning, can be a topic for future research. I have tried to offer some initial reflections in the article ‘‘Correlativity between Human Rights and Positive Obligations and its Role for the Execution of Judgements Delivered by the ECtHR’ forthcoming in the European Convention on Human Rights Law Review.

Rick Lawson and Mariana Ferolla Vallandro do Valle have chosen to focus their reviews on the last chapter that consumes one third of the whole book. As the opening statement in Rick Lawson’s review suggests, the inclusion of a chapter on extraterritorial ECHR positive obligations and the devotion of 100 pages on the topic, come as a surprise. Interestingly, however, it is precisely the exercise of comparing positive obligations in normal/domestic circumstances and abnormal/extraterritorial circumstances, that helped me (hopefully) better understand both. Rick Lawson coins the metaphor of a ‘true oasis in the desert’, which nicely reflects my conclusions on extraterritorial positive obligations in the book. At the same time, by exposing the inconsistencies and the instabilities in the case law, I also show that there is a river that can meander in different directions; ‘new turns’, not necessarily leading to an oasis, but still to places better than a barren dry land, are possible. In any case, it is important, as Mariana Ferolla Vallandro do Valle observes, to lay ‘the hard questions bare’ and to reflect upon the implications and the difficulties from each turn of the river.