Positive and Negative Obligations

Janneke Gerards

doi:10.1017/9781009042567.007

6 - Positive and Negative Obligations

Published online by Cambridge University Press: 03 June 2023

Janneke Gerards

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Janneke Gerards: Affiliation:
Universiteit Utrecht, The Netherlands

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Summary

The fundamental rights laid down in the Convention can generally be classified as civil and political rights and liberties. These oblige the States to abstain from undue interference with the Convention rights and freedoms and therefore are called ‘negative obligations’. At the same time, the Court has recognised that States have so-called ‘positive’ obligations to provide effective protection of the Convention rights. The Court’s recognition and development of positive obligations has significantly contributed to the overall strength and scope of the protection offered by the Convention. This chapter focuses on the ways in which the Court generally defines positive obligations, i.e. applying the fair balance test, the reasonable knowledge and means test, an effectiveness-based test, and a test based on the Court’s own precedents. The Chapter further discusses different types of positive obligations - in particular substantive, preventive and procedural positive obligations - and the relation between positive and negative obligations. In addition, the incorporation of social and economic rights in the Convention through positive obligations is addressed.

Keywords

effectiveness principle negative obligations positive obligations fair balance test reasonable knowledge and means test substantive positive obligations preventive positive obligations procedural positive obligations social and economic rights

Information

Type: Chapter
Information: General Principles of the European Convention on Human Rights , pp. 174 - 211

DOI: https://doi.org/10.1017/9781009042567.007 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2023

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References

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