Correlativity between Human Rights and Positive Obligations and its Role for the Execution of Judgments delivered by the European Court of Human Rights
(2024) In European Convention on Human Rights Law Review- Abstract
- States have discretion what concrete measures to undertake to fulfil their primary positive obligations under the ECHR. If a violation of these obligations is found, states also have discretion how to execute the judgment to comply with their secondary obligations. Yet, when the Court reasons to reach a conclusion whether there has been a violation, it necessarily specifies possible concrete measures that could have been undertaken at the relevant time in the past so that the state could have complied with its positive obligations. The question at the heart of this article is whether this specification of the measures in the reasoning assists in the identification of future measures for the purposes of the execution of the judgment and the... (More)
- States have discretion what concrete measures to undertake to fulfil their primary positive obligations under the ECHR. If a violation of these obligations is found, states also have discretion how to execute the judgment to comply with their secondary obligations. Yet, when the Court reasons to reach a conclusion whether there has been a violation, it necessarily specifies possible concrete measures that could have been undertaken at the relevant time in the past so that the state could have complied with its positive obligations. The question at the heart of this article is whether this specification of the measures in the reasoning assists in the identification of future measures for the purposes of the execution of the judgment and the guidance of the future state conduct. The Hohfeld’s correlativity model and the interest-based theory of rights are employed to address this question. It is explained how the specified measures indicated in the reasoning of the judgment do not correlate back to rights as demanded by the Hohfeld’s model. As a consequence, any measures that might be commanded by the ECHR obligations remain vague, which does not assist states in their efforts to execute judgments. (Less)
Please use this url to cite or link to this publication:
https://lup.lub.lu.se/record/a24d99b9-d9f4-45fe-9b77-79d130f89da9
- author
- Stoyanova, Vladislava LU
- organization
- publishing date
- 2024
- type
- Contribution to journal
- publication status
- in press
- subject
- keywords
- Positive obligations, Execution of judgments, European Convention on Human Rights, Correlativity, Hohfeld, Primary and secondary obligations, Interest-based theory of rights, Mänskliga rättighter
- in
- European Convention on Human Rights Law Review
- publisher
- Brill
- ISSN
- 2666-3228
- project
- The Borders Within: the Multifaceted Legal Landscape of Migrant Integration in Europe
- language
- English
- LU publication?
- yes
- id
- a24d99b9-d9f4-45fe-9b77-79d130f89da9
- date added to LUP
- 2024-03-17 17:25:09
- date last changed
- 2024-03-18 15:11:39
@article{a24d99b9-d9f4-45fe-9b77-79d130f89da9,
abstract = {{States have discretion what concrete measures to undertake to fulfil their primary positive obligations under the ECHR. If a violation of these obligations is found, states also have discretion how to execute the judgment to comply with their secondary obligations. Yet, when the Court reasons to reach a conclusion whether there has been a violation, it necessarily specifies possible concrete measures that could have been undertaken at the relevant time in the past so that the state could have complied with its positive obligations. The question at the heart of this article is whether this specification of the measures in the reasoning assists in the identification of future measures for the purposes of the execution of the judgment and the guidance of the future state conduct. The Hohfeld’s correlativity model and the interest-based theory of rights are employed to address this question. It is explained how the specified measures indicated in the reasoning of the judgment do not correlate back to rights as demanded by the Hohfeld’s model. As a consequence, any measures that might be commanded by the ECHR obligations remain vague, which does not assist states in their efforts to execute judgments.}},
author = {{Stoyanova, Vladislava}},
issn = {{2666-3228}},
keywords = {{Positive obligations; Execution of judgments; European Convention on Human Rights; Correlativity; Hohfeld; Primary and secondary obligations; Interest-based theory of rights; Mänskliga rättighter}},
language = {{eng}},
publisher = {{Brill}},
series = {{European Convention on Human Rights Law Review}},
title = {{Correlativity between Human Rights and Positive Obligations and its Role for the Execution of Judgments delivered by the European Court of Human Rights}},
year = {{2024}},
}