An analysis of the developments of the case law of the European Court of Human Rights progressively attributing positive obligations to all rights and freedoms set forth in the European Convention will be followed by drawing attention to some of the dangers raised by such interpretations.

A. THE CREATION OF POSITIVE OBLIGATIONS

In their classic meaning, civil rights and fundamental freedoms entail negative obligations for the State. The State is prohibited from torturing someone, holding someone in slavery or discriminating in the enjoyment of the rights and freedoms set forth in the Convention, arbitrarily depriving someone from his life and freedom, interfering in someone's right to respect for privacy, to freedom of thought, of expression, of assembly and association, etc. Only a few provisions explicitly impose positive obligations on the States parties.

Nevertheless, already in its judgment of 23 July 1968 on the merits of its third case (the Belgian linguistic case), the European Court of Human Rights stated – contrary to the Commission – that, despite the negative formulation of the right to education in Article 2 of the (First) Additional Protocol to the European Convention on Human Rights (“No person shall be denied the right to education”), “it cannot be concluded from this that the State has no positive obligation to ensure the respect for such a right”. This was strongly criticised by Judge Terje Wold (Norway), who considered that inserting a positive obligation into that Article 2 was “not a valid interpretation”. According to Judge Wold, it would be embarking on “a very dangerous road” to admit that the regulation of human rights “may vary in time and place according to the needs and resources of the community”. In his view, “the human rights granted are absolute rights” which must be the same for everyone, since “everyone” is “every person on the earth”. Once a freedom is protected by law against interference by the state, it is a “right”. That does not imply, contrary to what was stated by the Court, that it implies positive obligations.