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Causation between State Omission and Harm within the Framework of Positive Obligations Under the ECHR

Stoyanova, Vladislava LU (2018) In Human Rights Law Review 18(2).
Abstract
The issue of causation has been surprisingly overlooked in the area of international human rights law. The objective of this article is to fill this gap by investigating how the ECtHR finds causal connections between harm and state omissions within the framework of positive obligations. By engaging with causation, this article seeks to partially address the widely voiced concerns about the indeterminacy that clouds positive obligations in the case law. Four main arguments are articulated. First, assessments whether the state knew, or ought to have known, about the (risk of) harm, whether demanding state action is reasonable and whether harm is caused by state failures, are merged and affect each other in the enquiry as to whether the state... (More)
The issue of causation has been surprisingly overlooked in the area of international human rights law. The objective of this article is to fill this gap by investigating how the ECtHR finds causal connections between harm and state omissions within the framework of positive obligations. By engaging with causation, this article seeks to partially address the widely voiced concerns about the indeterminacy that clouds positive obligations in the case law. Four main arguments are articulated. First, assessments whether the state knew, or ought to have known, about the (risk of) harm, whether demanding state action is reasonable and whether harm is caused by state failures, are merged and affect each other in the enquiry as to whether the state has failed to fulfill its positive obligations. Second, the level of state control structures lines of causation. Third, since the question as to how much control the state should have could imply normative judgments in which the Court might not want to see itself implicated, and since empirical and epistemological uncertainly might hamper assessments of causation, the Court has recourse to techniques to avoid direct resolution of these normative issues and uncertainties. Two such techniques are discussed: domestic legality and national procedural guarantees. Finally, even in cases where omissions might be causative to harm, additional considerations might militate against finding the state responsible under the ECHR: reasonableness, no immediacy of the harm and no systemic failures. (Less)
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author
organization
publishing date
type
Contribution to journal
publication status
in press
subject
keywords
ECHR, Positive obligations, Causation, State knowledge, Sstate control, Reasonableness, Public international law, Folkrätt, Europadomstolen
in
Human Rights Law Review
volume
18
issue
2
publisher
Oxford
ISSN
1461-7781
language
English
LU publication?
yes
id
5f2ec0eb-df80-4c8d-9984-12d20f33579c
date added to LUP
2018-03-11 19:34:04
date last changed
2018-05-29 12:03:42
@article{5f2ec0eb-df80-4c8d-9984-12d20f33579c,
  abstract     = {The issue of causation has been surprisingly overlooked in the area of international human rights law. The objective of this article is to fill this gap by investigating how the ECtHR finds causal connections between harm and state omissions within the framework of positive obligations. By engaging with causation, this article seeks to partially address the widely voiced concerns about the indeterminacy that clouds positive obligations in the case law. Four main arguments are articulated. First, assessments whether the state knew, or ought to have known, about the (risk of) harm, whether demanding state action is reasonable and whether harm is caused by state failures, are merged and affect each other in the enquiry as to whether the state has failed to fulfill its positive obligations. Second, the level of state control structures lines of causation. Third, since the question as to how much control the state should have could imply normative judgments in which the Court might not want to see itself implicated, and since empirical and epistemological uncertainly might hamper assessments of causation, the Court has recourse to techniques to avoid direct resolution of these normative issues and uncertainties. Two such techniques are discussed: domestic legality and national procedural guarantees. Finally, even in cases where omissions might be causative to harm, additional considerations might militate against finding the state responsible under the ECHR: reasonableness, no immediacy of the harm and no systemic failures.},
  author       = {Stoyanova, Vladislava},
  issn         = {1461-7781},
  keyword      = {ECHR,Positive obligations,Causation,State knowledge,Sstate control,Reasonableness,Public international law,Folkrätt,Europadomstolen},
  language     = {eng},
  number       = {2},
  publisher    = {Oxford},
  series       = {Human Rights Law Review},
  title        = {Causation between State Omission and Harm within the Framework of Positive Obligations Under the ECHR},
  volume       = {18},
  year         = {2018},
}