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REFLECTIONS ON STATE RESPONSIBILITY FOR THE BREACH OF POSITIVE OBLIGATIONS: THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

REFLECTIONS ON STATE RESPONSIBILITY FOR THE BREACH OF POSITIVE OBLIGATIONS: THE CASE-LAW OF THE... 1. INTRODUCTION The European Court of Human Rights (the "Court") has used very often the notion of positive obligation, i. e. the obligation of the State to protect a person against violations of human rights committed by individuals or other entities. Posi- tive obligations may also be called obligations of prevention, if the terminology of the International Law Commission is adopted. In the words of the Commission, obligations of prevention "[...] require States to take all reasonable or necessary measures to prevent a given event [...]".' I In some cases the Court has inferred a positive obligation from articles of the European Convention on Human Rights (the "Convention") that were exclusively couched in terms of a negative duty. This is the case, for instance, in relation to Ar- ticle 3 - the prohibition of torture and inhuman or degrading treatment - or Article 8 - non-interference with private and family life. In some other cases, the State is expressly bound by the Convention either to abstain from itself infringing directly the human right or to prevent someone else's infringement of the right. The best ex- ample of an express obligation of prevention is offered by Article 2, first http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Italian Yearbook of International Law Online Brill

REFLECTIONS ON STATE RESPONSIBILITY FOR THE BREACH OF POSITIVE OBLIGATIONS: THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

The Italian Yearbook of International Law Online , Volume 13 (1): -8 – Jan 1, 2003
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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
eISSN
2211-6133
DOI
10.1163/221161303X00010
Publisher site
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Abstract

1. INTRODUCTION The European Court of Human Rights (the "Court") has used very often the notion of positive obligation, i. e. the obligation of the State to protect a person against violations of human rights committed by individuals or other entities. Posi- tive obligations may also be called obligations of prevention, if the terminology of the International Law Commission is adopted. In the words of the Commission, obligations of prevention "[...] require States to take all reasonable or necessary measures to prevent a given event [...]".' I In some cases the Court has inferred a positive obligation from articles of the European Convention on Human Rights (the "Convention") that were exclusively couched in terms of a negative duty. This is the case, for instance, in relation to Ar- ticle 3 - the prohibition of torture and inhuman or degrading treatment - or Article 8 - non-interference with private and family life. In some other cases, the State is expressly bound by the Convention either to abstain from itself infringing directly the human right or to prevent someone else's infringement of the right. The best ex- ample of an express obligation of prevention is offered by Article 2, first

Journal

The Italian Yearbook of International Law Online – Brill

Published: Jan 1, 2003

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