Delineating the Boundaries of Substantive Positive Obligations

Given the duality of human rights law, encompassing not only the corpus of human rights proclaimed in treaties but also the necessary specification of the relative obligations of their holders, the emergence of the positive obligations doctrine marked the law-making of the European Court of Human Rights (ECtHR) and the true consolidation of Conventional rights. While the ECtHR affirmed, at a very early stage, that the ECHR aims to safeguard “not rights that are theoretical or illusory but rights that are practical and effective”(para. 24), it suggested that the scope of state obligations is both negative and positive in nature, imposing on a state not only the duty to abstain from interfering with the enjoyment of the right, but also to take all the affirmative steps so that the right at stake could be effectively protected from third parties as well. It is thus within the context of the effet utile rationale that the ECtHR developed progressively its positive obligation doctrine.

Due to the impressive expansion of State-driven activities in our contemporary societies, States are, all the more, found responsible for their omissions when it comes to the protection of human rights. Casting positive obligations on States has become a necessary judicial tool for the Court to achieve substantive enjoyment of human rights in the region. Captivating as it may seem, the concept of positive obligations remains, nonetheless, opaque and complex.

In the following lines, I will briefly discuss the structure and the content of the monograph “Positive Obligations under the European Convention on Human Rights: Within and Beyond Boundaries”, written by Vladislava Stoyanova, zooming closer at the chapter that is dedicated to substantive positive obligations. The final part of this book review draws from the ECtHR’s application of the positive obligations doctrine and reflects on the contemporary role of the Court.

The Book at Hand

Stoyanova’s book, which I was kindly invited to review, dares the impossible: to deconstruct and reconstruct the doctrine of positive obligations in the context of the ECHR system in a bid to demystify its triggers, scope, and content as developed within the context of the ECtHR’s jurisprudence.

Despite the undoubted echo of the concept of positive obligations also beyond the boundaries of the ECHR system (pp. 140-147), the author returns where all of these started: in Strasbourg; and meticulously explores the nature, the conceptual challenges and the impact of the doctrine on the work of the Court. In a horizontal manner, the book achieves first a thorough analysis of the core features of the concept – State knowledge, causation, reasonableness – that cut across the States’ responsibility for omissions in terms of human rights protection under the ECHR. The author embraces also a vertical methodological approach. In the following chapters, the author moves the analysis a step further examining the content and scope of specific categories of positive obligations: procedural, substantial, and extraterritorial positive obligations.

Positive Obligations in Substance

Two sets of substantive positive obligations are identified by the author. First, Stoyanova sheds light on the rather abstract obligation incurred by States to develop effective regulatory frameworks. The shapes or forms that an ineffective regulatory framework takes for the Court are explored: the mere absence of a relevant regulatory framework, the nature of the framework or the implementation gap that might occur.

But the observations of the author that merit further attention are those revolving around the standard of review and most importantly, the degree of abstractness. Although the author does not zoom directly into how this obligation applies in specific cases (i.e. health-related cases, environmental or domestic violence cases etc.) or in relation to specific provisions (i.e. Article 2, 3 or 8), she makes valuable remarks revealing the Court’s overall approach to the circumstances dictating an abstract review, a concrete review or even an amalgam of the two. The abstract review, which appears in many instances as the first phase of the review process, sits more comfortably with the Court’s subsidiary character, its constitutional nature as well as its law-making character. As for the latter, Stoyanova points out:

“When the Court reviews the national regulatory framework in more abstract terms and identifies its deficiencies, it might come very close to exercising the role of a rule-maker since its reasoning might suggest how rules should be formulated at the national level” (p. 182).

Having complied with the first abstract requirement of an effective regulatory framework, the States, in cases that touch upon systemic problems affecting the domestic society as a whole (e.g. domestic violence, child abuse, medical negligence etc.) must set up such a framework with special diligence to the particularities of the vulnerable groups in peril. Hence, the ECtHR moves from the in abstracto review to a much more stringent one to identify the specific obligation that was not fulfilled. The author also observes that recently the Court has mostly gone for a mixed approach that combines the invocation of both ‘general standards’ and concrete State omissions. And that’s where the reasonableness criterion comes into play and often tips the balance in favour of the more abstract review of the State’s failure to protect human rights. The same goes with the obviousness of the regulatory deficiencies (p. 195).

Stoyanova does not lose sight, though, of the State’s obligation to develop effective national procedures, a non-autonomous obligation that goes hand-in-hand with the aforementioned substantive obligation to establish a well-functioning regulatory framework. The Court indeed imposes great weight on the decision-making process of the challenged measures/decisions which cannot be detached from the effectiveness of the framework at hand. Conceptualised as an obligation to balance interests per the criteria developed by the Court, this procedural obligation in nature becomes through the back door a rather substantive, yet auxiliary element of control that adds to the examination of the actual results of the State’s conduct.

Mindful of its limitations in terms of subsidiarity and fact-finding powers, the ECtHR opts for a holistic consideration of what the domestic legal framework provides, how it is implemented, and how the domestic (judicial) process is being followed to monitor the implementation of this framework. Although a sub-obligation of procedural character is clearly emerging from the case law, causality, as a substantive matter, allows the Court to connect the dots between the lacunae of the domestic procedure and the State’s conduct that- sometimes irrespective of the technicalities of the procedure- amounted to the applicant’s harm informs this stage of review (p. 203).

Moving to the second substantive obligation of the States to take protective operational measures, Stoyanova breaks down the content of said obligation and puts particular emphasis on the adjustments that the latter has undergone over the years. Since its dawn in the famous Osman v. the UK case, the Court has therefore departed from its initial position requiring only identifiable non-state actors as the perpetrators of the harm for the said positive obligation to be triggered. In addition, the obligation to take operational measures cannot be solely “a duty of personal protection”, as implied by the Court in the more recent Ribcheva ruling (para. 158). Rather, States are under the obligation to take operational measures when there is a public threat (i.e. terrorism).

In fact, States are all the more confronted with public/collective threats of any shape or form and as a result, the individualized risk assessment dictated by Osman-like scenarios does not fit squarely with this category of cases. Hence, the Court has relaxed the requirement of the immediacy of the risk that was initially applied for the State’s obligation to take operational measures to be triggered. Although the outcome was not favorable for the victim of domestic violence in Kurt v. Austria, the Grand Chamber has adopted a much more flexible approach. It held that the concept of “real and immediate risk” of the Osman test does not fit domestic violence cases due to the continuous and ever-escalating nature of such violence. The Court reiterated its Kurt principles in the recent  Tkhelidze v. Georgia judgment. Given the absence of a single incident-based type of violence, Stoyanova clearly observes that for the Court, “the likelihood for the harm to happen again suffices in the specific context of domestic violence” (p. 209).

Only a few days ago, the Court took the same road in the seminal KlimaSeniorinnen v. Switzerland in which the Grand Chamber was called upon to decide, in substance, whether there is also a positive obligation under the ECHR imposed on the State(s) to prevent climate harm. Responding in the affirmative, the Court has explicitly adjusted its “real and imminent risk” criterion as it held that such a risk should be seen through the lens of: “a grave risk of inevitability and irreversibility of the adverse effects of climate change, the occurrences of which are most likely to increase in frequency and gravity” (para. 513). It is this “material and temporal proximity” of the risk to the climate change-related harm that made the Court also recognize that causality, in the traditional sense, cannot be helpful in climate change cases and “special features” should be taken into account (para. 439).

Old Dilemmas and the Contemporary Role of the ECtHR

Notwithstanding the Court’s sincere willingness to clarify the contours of each and every type of positive action that is imposed on the States, the concept remains complex as regards the degree of review -abstract, concrete or a little bit of both-, the applicable standards and the new criteria that come into play.

Yet, the Strasbourg Court steps on thin ice here as delineating substantive obligations appears to be a rather difficult balancing task. The more developed and concrete this set of obligations becomes the heavier the ‘burden’ of the proper implementation of the Convention becomes for the States. The Court, therefore, retains the abstract review, either as the first phase of the review process or as an element of the latter, a position which is in line with its constitutional role to offer guidance to national judiciaries. At the same time, new types of disputes with strong social underpinnings that often unravel structural failures of the national authorities, i.e. cases related to domestic violence, human trafficking, medical negligence, and lately, climate change etc., put forward the Court’s in concreto review. Intrusive as it may seem, this type of review appears to be watered down, as the author observes, by the requirements of causality and reasonableness, albeit inconsistently. Speaking of dilemmas, it is evident that the Court exhibits a certain degree of ambiguity also with respect to the differentiation between substance and procedure. Procedural elements are not absent from the State’s core substantive obligation to set up an effective regulatory framework, an obligation coupled with a formalism-free assessment of the relevant procedures bringing to mind the effet utile of the Convention that underpins the entire positive obligations architecture.

Last but not least, the mere concept of positive obligations and their impressive development by a human rights court adjudicating, in principle, individual applications run counter to the dichotomy between, civil/political (individual) and social rights, the conception of which (the latter category) is built upon the necessity of States’ positive action to fulfill human rights. Such a division, dictated by another era, mostly for methodological reasons, is now revealed as highly dysfunctional for the realisation of rights in our contemporary societies. Stoyanova’s reading of positive obligations in terms of actors of harm and most importantly, objects of harm seems to come in support of this idea. Her work brings to mind old dilemmas in the realm of human rights protection: between abstract or concrete review, substance or procedure, and individual or social rights. At any rate, new collective challenges with a huge impact on the enjoyment of human rights point towards more nuanced, ‘hands-on’ approaches to traditional doctrines and standards. And the Court is aware of that.

Concluding Remarks

Overall, the book offers a much-needed anatomy of the corpus of positive obligations. Recent judicial developments indicate an anticipated rise in litigation revolving around the positive obligations imposed on the States. In this context, this monograph stands as an excellent scholarly work of immediate usefulness to the research community and any human rights expert.