In the previous chapter, we have seen that the privileging of negative over positive obligations, based on the assumptions that one can meaningfully distinguish between the underlying notions of “public authorities” vs. private entities and action vs. inaction/omission, is problematic in both analytical and normative terms. Instead, it was argued that the State should be held accountable whenever it fails to justify the degree to which its conduct – regardless of whether it should be analysed as action, inaction or a mix of both – has contributed to a particular human rights violation. In this chapter, I will suggest some changes to the Court's legal methodology in order to avoid the situation where the protection level offered to an applicant may differ depending on the mode of analysis applied.

Before proceeding to the discussion of the suggested changes, it is necessary to briefly discuss how to conceive of the Court's legal methodology. Discussing the Court's case law, Letsas distinguishes between what he considers to be constitutive and diagnostic questions. He draws a parallel with the medical world, giving the example of the distinction between the constitutive question of what cancer is and the diagnostic question of how a doctor can determine whether a patient suffers from cancer. In the area of the ECHR, he similarly considers there to be a distinction between constitutive questions, relating to “what rights are” and diagnostic questions relating to “how courts go about diagnosing whether there has been a human rights violation.” Importantly, Letsas considers that it is possible to distinguish between on the one hand the (constitutive) question whether a human right has “in fact” been violated, and the (diagnostic) question whether the tests applied by the Court indicate that a human right has been violated. As a result, as in the medical world, diagnostic tests in the area of human rights law can result in false negatives and false positives, i.e. situations in which the diagnostic tests respectively “fail to spot a violation or declare one when no violation took place.”