In Dialogue with Stoyanova

Vladislava Stoyanova’s recently published monograph on positive human rights obligations within the European Convention of Human Rights (ECHR) regime consolidates various earlier seminal papers of hers on the same topic and, most importantly, adds significant and original insights. This body of literature establishes Stoyanova as a focal point of reference on positive human rights obligations, with this Symposium itself serving as evidence of the importance and quality of Stoyanova’s book.

In this note, I am making two points. The first concerns the reach and transferable quality of Stoyanova’s analysis beyond positive human rights obligations. This point might seem contradictory or even oxymoronic as the reason I find the book appealing to audiences beyond the ECHR and human rights law pertains to an issue where, as I explain below, Stoyanova and I do not (at least fully) concur. The second point focuses on what I term the state of continuous, latent conflict between positive obligations. This point draws inspiration from Stoyanova’s analysis and extends it further in a direction I have previously identified in my scholarly work, albeit rather en passant.

The Transferable Quality of Stoyanova’s Analysis to Due Diligence

The value of Stoyanova’s work also lies in the fact that her analysis’ ‘bowshot’ exceeds (international) human rights law, having the potential to make a very positive contribution to general international law, both primary (i.e., state omissions and due diligence) and secondary (i.e., state responsibility for lack of diligence and failure to act/omissions). While Stoyanova, for very legitimate and methodologically sound reasons, keeps her analysis focused on the ECHR case law (p. 6), her findings possess a transferable quality. This extends not only to other human rights systems/areas at the universal, regional, and national levels but also to any other area and rule of international law that produces effects under the principle of due diligence. Stoyanova does incorporate due diligence in her analysis. For instance, in Section 2.1 of her book (p. 23) she discusses due diligence and state fault. She also examines due diligence in Chapter 8 (pp. 256-7), though this time to argue against the blending of positive human rights obligations with due diligence under public international law within the framework and for the purposes of extraterritoriality.

Where Stoyanova and I hold a different view is regarding the interrelationship between due diligence and positive obligations. According to Stoyanova (p. 257 and here), the two concepts may overlap but are distinguishable, also because positive obligations extend beyond obligations of conduct (see also H. Keller and R. Walther, p. 959; M. Monnheimer, pp. 55, 122). That is, she understands positive obligations as being broader than due diligence. From my perspective, all positive obligations are obligations of conduct/means under the principle of due diligence. Positive human rights obligations originate from the same ‘matrix’, namely due diligence, as all other due diligence obligations that states have in areas other than human rights law. Moreover, as a general principle of (international) law, due diligence is flexible enough to accommodate the specificities of human rights, endowing them with plasticity and adaptability to the particular circumstances of each case. I do not argue that positive human rights obligations are easy to define or to establish concrete standards of conduct for. On the contrary, I find them to be elusive; just as elusive as due diligence is. Why due diligence/positive human rights obligations are elusive is also, partially, explained by the next point.

State of Continuous, Latent Conflict Between Positive Obligations

This point pertains to what Stoyanova refers to in the introduction of her monograph as the “[p]lurality of [o]bligations” (p. 12) and, in particular, conflicting obligations. Stoyanova thoroughly discusses “[c]ompeting [o]bligations” in Chapter 5 of her book, where she observes that “[p]ositive human rights obligations […] can compete, and even conflict, with other human rights obligations, both positive and negative” (p. 95). In this respect, Elena Katselli Proukaki and I have suggested (pp. 466-7) that all positive human rights obligations find themselves in a state of constant, latent conflict/competition with each other.

To delve into this argument, the initial point to note is that all positive human rights obligations (and more broadly, all due diligence obligations) come with an economic cost. Any actions taken by states and resources utilised to meet positive obligations, such as investing in and employing human capital, purchasing equipment, gathering information/investigating, or enacting rules, entail economic costs. I view this as a key criterion that can help distinguish between positive and negative obligations, especially in difficult cases where other criteria do not suffice, as negative obligations inherently entail no economic cost. Under negative obligations, states are merely expected to be neutral, that is, to abstain from acting. This incurs zero economic cost. On the contrary, positive obligations always involve expenditure. Costs vary, depending on what the state is required to do. They may be minimal, but there is always some associated expense. Therefore, next to other applicable criteria (see, for instance, L. Lavrysen, particularly Chapter 5 and  J. Vorland Wibye), if compliance with a human rights obligation costs money to the state (and its taxpayers), this determines the obligation as positive in nature.

The second observation is that states have myriad positive human rights obligations across various fields and areas. Unlike resources, which are limited, positive obligations are unlimited and wide-ranging. Here are some examples. States are required to train their police forces as a means to prevent human rights violations, such as torture. But states are also required to regulate and manage the health system (e.g., procure medical equipment) to protect human life, acquire equipment for educational purposes in schools, monitor and sanction corporations that fail to duly label products for safe consumer use, provide sanitary and personal hygiene products to detainees, ensure humane living conditions for asylum seekers, design and implement policies to prevent and combat domestic violence, maintain a well-trained and equipped judiciary to prevent, remedy and punish human rights violations, sanction life-endangering activities such as drug use or driving without a safety belt, develop policies concerning the accessibility of buildings for disabled persons, criminalise, punish and investigate human trafficking, and so on. The list of positive obligations is literally endless.

All these positive obligations cost money. Since resources are not unlimited, the funds that a state allocates to meet its positive human rights obligations in one area are funds that cannot be allocated to another area. The resources used for one protective measure are resources that will not be available for another. That is, establishing standards in one field of protection ‘locks’ funds and resources, thereby constraining a state’s capacity to provide protection in another field. This indicates that positive human rights obligations are constantly and consistently in competition. Whenever an authority, including international monitoring bodies and/or courts, sets a specific standard of human rights protection, when the judiciary finds an omission, every time rights get translated into justiciable standards of protection, funds are allocated/’blocked’ to these standards, preventing the use of these funds for other (human rights protective) purposes. This raises a number of interesting questions.

For instance, such a question is whether states are able, that is, whether they have the means to offer protection. Although ability to act is a key element of due diligence/positive obligations, courts tend to presume that states have the necessary means. This approach by courts narrows down the criterion of ‘ability to act’ to the consideration of other relevant factors (e.g., proximity, such as how close a police officer was to a situation requiring protection) that do not involve economic capacity. In essence, 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. While this poses a problem, it is also convenient in a way. First, it endows courts with flexibility. Second, it allows them to bypass their (methodological) limitations. For instance, how, i.e. through which methods and tools, can a court assess a state’s ability to act in terms of the availability of the necessary funds/means?

Yet, establishing positive obligations involves more than just evaluating economic feasibility or possibly conducting economic analysis of law (e.g., costs and benefits, incentives, trade-offs). It also raises delicate questions of redistribution and prioritisation of the areas that need or ‘deserve’ (i.e., are deemed worthy of) certain standards of protection.  The fact that positive human rights duties compete with each other, due to their cost and the finite resources of states, necessitates prioritising certain positive human rights duties over others. This, in turn, leads to complex and, essentially, extra-legal (i.e., involving value judgment) questions: Are all human rights equally important or morally weighty? What criteria can or should be used to prioritise positive human rights obligations in one area over another?

Then, the question arises as to which authority should exercise standard-setting competence. Should standard-setting better be done by the executive and the legislature, rather than the judiciary? When and to what extent should courts establish standards that essentially redistribute the limited resources/funds available to a state within society? This is where reasonableness comes into play – a concept that Stoyanova explores in detail in Chapter 4 of her monograph, where she also explains that “[t]he standard of reasonableness […] refers to the choices that need to be made in terms of priorities, resources and values in the society” (p. 74). But what makes a standard of human rights protection reasonable? As Stoyanova shows (p. 28), the European Court of Human Rights often in a sense self-restraints its powers, acknowledging that it should not impose excessive or unreasonable burden on states. What is excessive, and can this ever be ‘measured’? Is this an ex aequo et bono approach? If so, is this desirable and inescapable?

The author is thankful to Antal Berkes and Demi-Lee Franklin for their comments. The opinions expressed in this note are those of the author.