Circunstancias nacionales y de la provincia de Santa Fe

OBLIGATIONS

Th e ECtHR broadly defi nes a positive obligation as a requirement for states to take active measures to protect fundamental rights. It also has been seen in the preceding chapters that the ECtHR oft en applies the term ‘ positive obligations ’ in its judgments to indicate the obligations that states must fulfi l to ensure the protection of a fundamental right within the relations between individual parties, and in its own relations with individuals. To some extent, it appears to be diffi cult to arrive at a more clear and helpful defi nition of the concept of positive obligations. Th e defi nition necessarily needs to be broad to cover the diff erent types of positive obligations which are recognised by the ECtHR (see section 5.3.).

Perhaps a fuller understanding of the ECtHR ’ s concept of positive obligations can be reached by looking at the distinction that applies between positive and negative obligations. Th e ECtHR has held that positive obligations arise in addition to the negative obligations that are traditionally to be found in the fundamental rights provisions of the Convention. Indeed, the fundamental rights guaranteed by the Convention are negatively phrased, and generally do not specify that certain actions need to be taken by the states. Even the structure of the Convention provisions is mainly oriented towards negative obligations – that is, most provisions specifi cally address the restrictions which can be made on those rights by public authorities. In that respect, positive obligations can be regarded as the mirror side of negative obligations – they simply are obligations for the states that are not negative. Th e ECtHR further has held that positive obligations generally leave states a choice as to the measures they have to take to fulfi l those obligations, while negative obligations are usually regarded as obligations of result – states should simply refrain from interfering with fundamental rights (except when a justifi cation can be given). Th us, by contrasting positive obligations and negative obligations, it becomes clear that there are certain diff erences, which may help to determine what positive obligations really are.

Admittedly, a clear-cut distinction between positive and negative obligations is hard to make in practice. Th e ECtHR itself has not always applied a very consistent or logical approach in every respect. In the case of Marckx v. Belgium , for example, the ECtHR imposed a positive obligation on the states parties to ensure legal recognition of the family rights of children born out of wedlock. In that case, the state had already taken certain positive action by establishing a legislative and administrative framework for the recognition of family rights. It could, therefore, also have been argued that the state violated its negative obligation in respect of children born out of wedlock. It is diffi cult to say in such a case whether it was the state ’ s failure to act or rather its actions that caused an interference with a fundamental right. In addition, interference with fundamental rights can result from a complex set of causes that may involve state acts as well as omissions.

Such diffi culties notwithstanding, in part I of this study it has been argued that it is still valuable to take the conceptual diff erences between negative and positive obligations into account when trying to understand when the ECtHR turns to applying positive obligations and how it defi nes the concept. In summary, the conceptual diff erences that can be taken into account here are that positive obligations, contrary to negative obligations, (i) do not follow (directly) from provisions on fundamental rights and their structure, but need to be implied in individual cases; (ii) require states to take active measures which can only relate to certain gaps in their policies; (iii) and have an ‘ alternative ’ structure, which means that they leave a choice as to the measures which need to be taken by states.

In combination, these features already reveal some inherent diffi culties and specialties in recognising positive obligations. In particular, positive obligations cannot always be defi ned beforehand on the basis of provisions of fundamental rights. Rather they will reveal themselves in concrete circumstances, based on the question of what eff ective

Chapter 5. Part I – Conclusions

protection of a Convention right requires in the particular case on hand. Th is principle of eff ectiveness actually is very open-ended and its application can create some legal uncertainty. Th is broad approach to recognising positive obligations has given rise to various forms of criticism which are discussed further below (see section 5.5.).

5.3. TYPOLOGIES OF POSITIVE OBLIGATIONS

Th e broad defi nition of positive obligations provided for by the ECtHR allows it to cover various types of positive obligations. Th e ECtHR itself has only clearly distinguished between procedural and substantive positive obligations, but other typologies have been developed by scholars. Th ese typologies can provide further insight into the diff erent kinds of positive obligations that can arise from the Convention. Th ese typologies also may help to reveal some of the eff ects that positive obligations may have, as well as the problematic consequences that some positive obligations may have. It is therefore useful briefl y to summarise them before discussing the eff ects and criticism of the Court ’ s case-law on positive obligations (see sections 5.4. and 5.5.).

Looking at the content of the measures needed to fulfi l positive obligations, a distinction can be made between positive obligations to legislate, to provide for an administrative framework and/or to take practical measures to protect fundamental rights. In practice, however, it is diffi cult to trace this typology in the case-law of the ECtHR, as this court generally does not indicate what types of implementing measures would required to be taken. Nevertheless, it may be useful in a critical analysis of the Court ’ s case-law, as it may help to determine if the Court has overstepped its judicial functions in imposing obligations on, for example, a national parliamentary body.

Secondly, a typology of vertical and horizontal positive obligations has been established. Vertical positive obligations concern the relation between the state and the individual, and horizontal positive obligations concern the relations between private parties. Horizontal positive obligations may be imposed to ensure that certain private parties do not violate the fundamental rights of a third party, which may, for example, occur in situations between an employer and an employee. Horizontal positive obligations may also be imposed on states to ensure that the fundamental rights of individuals are enjoyed in their broader societal relations. Th is then concerns horizontal positive obligations with a social dimension. Here, some groups of individuals can be especially vulnerable, such as immigrants or the elderly, and the violations are not caused deliberately by the state or by other individuals but, rather, they follow from a situation ‘ on the ground ’ . Both the vertical and horizontal types of positive obligations can be recognised in the case-law of the ECtHR. However, when looking at an ECtHR case, scholars may disagree over which of these two types of positive obligations have been established. Arguably, this is because it requires something to be said about the causes of the infringement (state, individual or social reality).

Th e third typology mainly focuses on the degree to which a positive obligation can be derived from the negative obligation to protect fundamental rights. On this basis,

1 Th e ECtHR does, however, use Articles 1 and 13 ECHR as a general basis, see section 3.2.5. In this regard, it is also necessary to take into account that the Convention was written 60 years ago. Th e ECtHR has chosen not to interpret the Convention as a static instrument, but as a living instrument.

Th erefore, it is the case-law of the ECtHR rather than the text of the Convention provisions which contains the main principles for the development of positive obligations.

a distinction can be made between dependent, supportive, intrinsic, autonomous and repressive types of positive obligations. Th e fi rst type (dependent obligations) is closest to the negative obligation to protect fundamental rights, while the last one (repressive