Th ere are many diff erent typologies of positive obligations which provide useful insight into the types of implementing measures which states could take to fulfi l the positive obligations under the Convention, as well as what diff erent relations these positive obligation can apply to.
First, the types of measures which states could take to implement the positive obligations under the Convention could be considered. Xenos, in particular, has concentrated on this, and distinguishes between positive obligations to legislate, positive obligations to provide for an administrative framework, and positive obligations to take practical measures to protect fundamental rights. 114 Th e ECtHR itself has also clarifi ed on diff erent occasions that fundamental rights require, by their very nature, that there must be a legislative and administrative framework to protect fundamental rights or that amendments must be made thereto. 115
Secondly, to be able to classify further the positive obligations which can be found in the case-law of the ECtHR, it may be useful to look at the classic typology of the duties to respect, protect and fulfi l. 116 Th is tripartite typology was originally developed in relation to the protection of social, economic and cultural rights, although it can also be applied to the protection of civil and political rights. 117 Th e duty to respect entails a duty to refrain from interfering in the exercise of fundamental rights by individuals.
Th e duty to protect constitutes a duty to prevent human rights violations caused by private parties. Th e duty to fulfi l is a duty for states to take complementary legal, administrative and other kinds of measures in order to guarantee the enjoyment of fundamental rights. 118 All three duties are considered to be inherent to all fundamental rights, and are necessary to fully realise fundamental rights. 119 It is oft en suggested that – compared to the negative/positive dichotomy which is applied by the ECtHR – this typology manifests more clearly the indivisible nature of fundamental rights and the multiple types of obligations that can be imposed on states. 120
121 See Lavrysen (2016), pp. 72 ff . Xenos, however, considers that positive obligations are always concerned with the relations between individuals, see Xenos (2012).
122 See e.g. Xenos (2012), pp. 19 and 142 – 143.
123 Dr ö ge (2003), p. 382.
124 Xenos (2012), p. 143.
125 Xenos, for example, is convinced that the ECtHR defi ned a horizontal type of positive obligation in the case of Marckx v. Belgium , whereas Dr ö ge regards this case as an example of a positive obligation of a social dimension, see Xenos (2012), p. 19; and Dr ö ge (2003), p. 382.
126 Lavrysen (2016), p. 11.
127 Dr ö ge ’ s typology intends to clarify the normative content of positive obligations, and concentrates on what causes underlie a fundamental rights violation. Xenos ’ analysis concentrates on identifying the criteria for determining the scope of states ’ positive obligations under the Convention, with the objective of defi ning the scope of positive obligations better and in a more ‘ realistic, consistent and predictable manner ’ , see Xenos (2012), p. 57.
128 See sections 11.3. and 11.4.
129 Van Kempen (2008), pp. 16 – 20.
Related to this typology is one which distinguishes between positive obligations of a horizontal nature and positive obligations of a vertical nature. 121 Horizontal positive obligations relate to the protection of fundamental rights in the relations between individuals, whereas vertical positive obligations relate to the relations between the state and an individual. 122 Dr ö ge has also further distinguished between the horizontal positive obligations which have a social dimension. 123 Such positive obligations are concerned with the realisation of the eff ective enjoyment of fundamental rights in social reality. Where positive obligations with a social dimension are encountered, the fundamental rights violations are not caused directly by any act of a state agent, nor by acts of other private parties, but rather arise from the situation ‘ on the ground ’ . Also, Xenos seems to consider that there is such a positive obligation with a social dimension to be found in the case-law of the ECtHR. According to Xenos there are positive obligations which arise in the absence of state interference, and relate to the vulnerability of specifi c groups of individuals, such as immigrants or the elderly. 124
It can be very diffi cult to distinguish clearly between these vertical, horizontal and social types of positive obligations in practice. Scholars themselves may even come to diff erent conclusions over what type of positive obligations were defi ned by the ECtHR in specifi c cases. 125 Also, the tripartite typology of positive obligations discussed earlier is very diffi cult to trace on the basis of the case-law of the ECtHR on positive obligations. 126 Th e diff erences between these typologies may in fact relate to the objective of the analysis that was undertaken when they were developed. 127 Th ese typologies may, however, more generally show the types of relations to which positive obligations may apply (to state-individual, to two individuals, or to the societal relations of individuals).
It is therefore also useful to examine the types of positive obligations which may be found in the case-law of the ECJ, which will be discussed further in parts II and III. 128
Lastly, an interesting typology has been developed by Van Kempen. 129 Th is typology focuses on the degree to which the positive obligations of the ECtHR follow from the negative obligation that can legitimately be derived from the provisions of the
Chapter 3. Th e Development of Positive Obligations Under the European Convention on Human Rights
130 Van Kempen also identifi es positive obligations which can cause ‘ secondary violations of fundamental rights ’ . An example is where the ECtHR requires states to fulfi l positive obligations to protect the rights of children to have knowledge about their biological father, even though the biological father ’ s right to privacy will be aff ected.
131 See section 11.4.
Convention. Van Kempen analysed the Court ’ s development of positive obligations, particularly in the fi eld of criminal law. He put forward six types of positive obligations that can be arranged on a scale that is based on a negative concept of freedom. Th e negative concept of freedom, according to Van Kempen, is essential to the guarantees which are provided by fundamental rights. On one end of the scale, one can fi nd the so-called dependent type of positive obligations. Th is positive obligation is imposed on states when they breach the negative obligation not to interfere in the lives of individuals. For example, when states restrict the liberty of a detainee, they must take action to guarantee the basic facilities to protect the health and safety of detainees.
Such obligations logically follow from the negative obligations that can be found in fundamental rights provisions. Next on the scale, there are positive obligations which are supportive to negative obligations, that is, obligations which must, in particular, be fulfi lled by the addressees of fundamental rights provisions. Van Kempen indicates the positive obligation for suitable training to be provided for police offi cers in order to prevent torture, inhuman or degrading treatment as an example. Further along the scale one can fi nd positive obligations that are intrinsic to particular fundamental rights, such as the right to free elections and the right to education, which logically require the state to set up certain institutions and take organisational measures. At the opposite side of dependent positive obligations, Van Kempen positions the so-called autonomous or repressive positive obligations. He considers this type of positive obligation to be the most detached and distant from the fundamental right to which the obligation is related (and therefore the most problematic). Examples of such positive obligations are obligations to prevent human traffi cking and terrorist activities. Autonomous or repressive positive obligations require the most extensive interpretation of the Convention provisions. 130 Th is typology can, in particular, be useful when looking at the legitimacy of deriving certain positive obligation from fundamental rights.
Clearly, there are many diff erent typologies of positive obligations to be made, and this section has not discussed all of them. Th e typologies that have been discussed here are those which will fi rstly be used in chapter 4 to examinine various problematic features of the development of (some) positive obligations. Secondly, these typologies will be especially relevant when discussing the concept of positive obligations in the following parts of this study on the EU context. Th e diff erent typologies are applied in order to be able to characterise the types of positive obligations which may be found in the case-law of the ECJ, and also to discuss their problematic aspects. 131
132 For a comprehensive analysis of the implications of the Court ’ s recognition of positive obligations under the Convention, see Xenos (2012), particularly pp. 1 – 5.
133 See further section 2.7.
134 ECtHR 13 June 1979, no. 6833/74, Marckx v. Belgium , para. 31; ECtHR 9 October 1979, no. 6289/73, Airey v. Ireland , para. 23; and ECtHR 28 May 1985, nos. 9214/80 to 9474/81, Abdulaziz, Cabales and Balkandali v. the United Kingdom , para. 67. Cf. Gerards (2011b), p. 231.