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The Disjunctive Structure of Positive Rights under the European Convention on Human Rights

Stoyanova, Vladislava LU (2018) In Nordic Journal of International Law 87(3). p.344-392
Abstract

The European Court of Human Rights (ECtHR) has reiterated that states have discretion regarding what means to use to fulfil their positive obligations under the European Convention on Human Rights (echr). Given the "wide range of possible measures" that could be taken to ensure compliance with positive rights, these rights have a disjunctive structure since an omission has no definitive counterpart. This article examines how the ECtHR deals with the disjunctive structure of positive rights and how it addresses alternative protective measures that could have been extended. In order to identify the main points of contention, I first draw on legal-theoretical literature that has grappled with the structure of positive rights. I then... (More)

The European Court of Human Rights (ECtHR) has reiterated that states have discretion regarding what means to use to fulfil their positive obligations under the European Convention on Human Rights (echr). Given the "wide range of possible measures" that could be taken to ensure compliance with positive rights, these rights have a disjunctive structure since an omission has no definitive counterpart. This article examines how the ECtHR deals with the disjunctive structure of positive rights and how it addresses alternative protective measures that could have been extended. In order to identify the main points of contention, I first draw on legal-theoretical literature that has grappled with the structure of positive rights. I then examine what the Court actually does when it adjudicates positive obligation cases under qualified and unqualified rights. I analyse how and why the review endorsed in the ECtHR's judgments diverges from or converges with the theoretical model.

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author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
disjunctive structure of positive rights, European Convention on Human Rights (echr), positive obligations, proportionality
in
Nordic Journal of International Law
volume
87
issue
3
pages
49 pages
publisher
Brill Academic Publishers
external identifiers
  • scopus:85054541221
ISSN
0902-7351
DOI
10.1163/15718107-08703003
language
English
LU publication?
yes
id
181d2793-21bd-401a-8fe0-8b531378c231
date added to LUP
2018-11-08 10:13:35
date last changed
2019-01-06 14:13:47
@article{181d2793-21bd-401a-8fe0-8b531378c231,
  abstract     = {<p>The European Court of Human Rights (ECtHR) has reiterated that states have discretion regarding what means to use to fulfil their positive obligations under the European Convention on Human Rights (echr). Given the "wide range of possible measures" that could be taken to ensure compliance with positive rights, these rights have a disjunctive structure since an omission has no definitive counterpart. This article examines how the ECtHR deals with the disjunctive structure of positive rights and how it addresses alternative protective measures that could have been extended. In order to identify the main points of contention, I first draw on legal-theoretical literature that has grappled with the structure of positive rights. I then examine what the Court actually does when it adjudicates positive obligation cases under qualified and unqualified rights. I analyse how and why the review endorsed in the ECtHR's judgments diverges from or converges with the theoretical model.</p>},
  author       = {Stoyanova, Vladislava},
  issn         = {0902-7351},
  keyword      = {disjunctive structure of positive rights,European Convention on Human Rights (echr),positive obligations,proportionality},
  language     = {eng},
  number       = {3},
  pages        = {344--392},
  publisher    = {Brill Academic Publishers},
  series       = {Nordic Journal of International Law},
  title        = {The Disjunctive Structure of Positive Rights under the European Convention on Human Rights},
  url          = {http://dx.doi.org/10.1163/15718107-08703003},
  volume       = {87},
  year         = {2018},
}