Framing Positive Obligations under the European Convention on Human Rights Law: Mediating between the Abstract and the Concrete
(2023) In Human Rights Law Review 23(3).- Abstract
- This article examines positive obligations under the European Convention on Human Rights from the perspective of the level of concreteness chosen for their framing. This level is essential for understanding whether and how the analytical distinction between the existence of an obligation and the breach of this obligation can be applied. The level of concreteness is an important conceptual framework for examining positive obligations because it has an impact even on the possibility of making an assessment as to whether the State has breached the obligation, and on how this assessment is performed in the reasoning. The Grand Chamber judgment in Kurt v Austria is used to illustrate how positive obligations can be framed both in more... (More)
- This article examines positive obligations under the European Convention on Human Rights from the perspective of the level of concreteness chosen for their framing. This level is essential for understanding whether and how the analytical distinction between the existence of an obligation and the breach of this obligation can be applied. The level of concreteness is an important conceptual framework for examining positive obligations because it has an impact even on the possibility of making an assessment as to whether the State has breached the obligation, and on how this assessment is performed in the reasoning. The Grand Chamber judgment in Kurt v Austria is used to illustrate how positive obligations can be framed both in more abstract and more concrete terms, and how the reasoning mediates between the abstract and the concrete. The more it tilts towards a concrete formulation of the obligation, the more the Court appears to assume the role of a rule-maker, which is in tension with the principle that States have discretion as to what concrete measures to take to fulfill their positive obligations. (Less)
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https://lup.lub.lu.se/record/53088562-6b18-44e6-953e-c4370e3d1ad9
- author
- Stoyanova, Vladislava LU
- organization
- publishing date
- 2023
- type
- Contribution to journal
- publication status
- published
- subject
- keywords
- European Convention on Human Rights, positive obligations, Kurt v Austria, omissions, risk assessment, Osman test, Human rights, Mänskliga rättigheter
- in
- Human Rights Law Review
- volume
- 23
- issue
- 3
- article number
- ngad010
- publisher
- Oxford University Press
- external identifiers
-
- scopus:85162110167
- ISSN
- 1461-7781
- DOI
- 10.1093/hrlr/ngad010
- language
- English
- LU publication?
- yes
- id
- 53088562-6b18-44e6-953e-c4370e3d1ad9
- date added to LUP
- 2023-03-07 08:19:24
- date last changed
- 2023-09-04 10:28:03
@article{53088562-6b18-44e6-953e-c4370e3d1ad9,
abstract = {{This article examines positive obligations under the European Convention on Human Rights from the perspective of the level of concreteness chosen for their framing. This level is essential for understanding whether and how the analytical distinction between the existence of an obligation and the breach of this obligation can be applied. The level of concreteness is an important conceptual framework for examining positive obligations because it has an impact even on the possibility of making an assessment as to whether the State has breached the obligation, and on how this assessment is performed in the reasoning. The Grand Chamber judgment in Kurt v Austria is used to illustrate how positive obligations can be framed both in more abstract and more concrete terms, and how the reasoning mediates between the abstract and the concrete. The more it tilts towards a concrete formulation of the obligation, the more the Court appears to assume the role of a rule-maker, which is in tension with the principle that States have discretion as to what concrete measures to take to fulfill their positive obligations.}},
author = {{Stoyanova, Vladislava}},
issn = {{1461-7781}},
keywords = {{European Convention on Human Rights, positive obligations, Kurt v Austria, omissions, risk assessment, Osman test; Human rights; Mänskliga rättigheter}},
language = {{eng}},
number = {{3}},
publisher = {{Oxford University Press}},
series = {{Human Rights Law Review}},
title = {{Framing Positive Obligations under the European Convention on Human Rights Law: Mediating between the Abstract and the Concrete}},
url = {{http://dx.doi.org/10.1093/hrlr/ngad010}},
doi = {{10.1093/hrlr/ngad010}},
volume = {{23}},
year = {{2023}},
}