The Positive Obligations of the State under the European Convention of Human Rights

The Positive Obligations of the State under the European Convention of Human Rights PDF

Author: Dimitris Xenos

Publisher: Taylor & Francis

Published: 2012-04-27

Total Pages: 266

ISBN-13: 1136664440

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The system of the European Convention of Human Rights imposes positive obligations on the state to guarantee human rights in circumstances where state agents dot not directly interfere. In addition to the traditional/liberal negative obligation of non-interference, the state must actively protect the human rights of individuals residing within its jurisdiction. The liability of the state in terms of positive obligations induces a freestanding imperative of human rights that changes fundamentally the perception of the role of the state and the participatory ability of the individual, who can now assert their human rights in all circumstances in which they are relevant. In that regard, positive obligations herald the most advanced review of the state’s business ever attempted in international law. The book undertakes a comprehensive study of positive obligations: from establishing the legitimacy of positive obligations within the system of the Convention to their practical implementation at the national level. Analysing in depth legal principles that pervade the whole system of the Convention, a coherent methodological framework of critical stages and parameters is provided to determine the content of positive obligations in a consistent, predictable and realistic manner. This study of the Convention explains and critically analyses the state’s positive obligations, as imposed by the European Court of Human Rights, and sets out original proposals for their future development. The book will be of interest to those who study, research or practice public law, civil rights and liberties or international/European human rights law.

Protecting the right to freedom of expression under the European Convention on Human Rights

Protecting the right to freedom of expression under the European Convention on Human Rights PDF

Author: Bychawska-Siniarska, Dominika

Publisher: Council of Europe

Published: 2017-08-04

Total Pages: 124

ISBN-13:

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European Convention on Human Rights – Article 10 – Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. In the context of an effective democracy and respect for human rights mentioned in the Preamble to the European Convention on Human Rights, freedom of expression is not only important in its own right, but it also plays a central part in the protection of other rights under the Convention. Without a broad guarantee of the right to freedom of expression protected by independent and impartial courts, there is no free country, there is no democracy. This general proposition is undeniable. This handbook is a practical tool for legal professionals from Council of Europe member states who wish to strengthen their skills in applying the European Convention on Human Rights and the case law of the European Court of Human Rights in their daily work.

The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights

The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights PDF

Author: Alastair Mowbray

Publisher: Bloomsbury Publishing

Published: 2004-01-30

Total Pages: 256

ISBN-13: 1847311938

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During the last thirty years the European Court of Human Rights has been developing,at an expanding pace, positive obligations under the European Convention. This monograph seeks to provide a critical analysis of the burgeoning case law concerning positive obligations, a topic which is relatively uncharted in the existing literature. Positive obligations require many different forms of action by member states, ranging from effectively investigating killings through to protecting peaceful demonstrators from violent attacks by their opponents. The contemporary significance of these obligations is graphically illustrated by the fact that it is the obligation upon states to provide fair trials to determine civil and criminal proceedings within a reasonable time that is the source of the overwhelming majority of complaints to the European Court in recent years. The study examines the legal bases and content of key positive obligations. Conclusions are then drawn concerning the reasons for the development of these obligations and areas of potential expansion are identified.

Positive Obligations Under the European Convention on Human Rights

Positive Obligations Under the European Convention on Human Rights PDF

Author: Vladislava Stoyanova

Publisher: Oxford University Press

Published: 2023-09-05

Total Pages: 353

ISBN-13: 0192888048

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It is beyond question that States have positive obligations under the European Convention on Human Rights (ECHR) to prevent harm. A State can be found in breach of the ECHR when it should have protected persons from harm or risk. However, given the difficulties of determining and delimiting the role of the State, the conditions under which positive obligations may apply have been unclear. The search for balance between intrusion and restraint by the State - between protection and freedom from interference - further complicates questions of state responsibility. Vladislava Stoyanova directly addresses these challenges in Positive Obligations under the European Convention on Human Rights. By systematising the case law of the European Court of Human Rights, the book provides key insights into the elements crucial for ascertaining state responsibility for omissions - state knowledge, causation, and reasonableness. It outlines different kinds of positive human rights obligations and identifies the circumstances under which they can be breached. Stoyanova reflects upon what is at stake for political communities when the triggering, content, and scope of positive obligations has been determined. She offers serious evaluation of the dangers of ECHR obligations whose scope might be too expansive or intrusive, as well as the conceptual hurdles of applying positive human rights obligations extraterritorially. The definitive resource on ECHR positive obligations, this book is essential reading for academics, legal practitioners, and policymakers working across the diverse fields in which positive human rights obligations may apply. This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is free to read at Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations.

Human Trafficking and Slavery Reconsidered

Human Trafficking and Slavery Reconsidered PDF

Author: Vladislava Stoyanova

Publisher: Cambridge University Press

Published: 2017-03-16

Total Pages: 513

ISBN-13: 1107162289

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An original analysis of the definition and scope of the right not to be held in slavery, servitude and forced labour.

Shaping Rights in the ECHR

Shaping Rights in the ECHR PDF

Author: Eva Brems

Publisher: Cambridge University Press

Published: 2014-01-23

Total Pages: 379

ISBN-13: 1107729696

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In fundamental rights adjudication, a court first has to determine whether the interest at stake falls within the scope of the fundamental right invoked. Whether or not an individual interest falls within the scope or ambit of one of the fundamental rights protected by the European Convention on Human Rights determines whether or not the European Court of Human Rights can decide on the merits of a case. This volume brings together a variety of legal scholars in order to examine the scope of fundamental rights. Topics range from the nature of human rights and the real or imagined risk of rights inflation to theories of positive obligations and social and economic rights. It contains contributions of a theoretical nature as well as analytical overviews of the ECtHR's approach. In addition, comparisons are made with domestic, EU and international law.

Human Rights in the Council of Europe and the European Union

Human Rights in the Council of Europe and the European Union PDF

Author: Steven Greer

Publisher: Cambridge University Press

Published: 2018-03-29

Total Pages: 562

ISBN-13: 1108647456

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Confusion about the differences between the Council of Europe (the parent body of the European Court of Human Rights) and the European Union is commonplace amongst the general public. It even affects some lawyers, jurists, social scientists and students. This book will enable the reader to distinguish clearly between those human rights norms which originate in the Council of Europe and those which derive from the EU, vital for anyone interested in human rights in Europe and in the UK as it prepares to leave the EU. The main achievements of relevant institutions include securing minimum standards across the continent as they deal with increasing expansion, complexity, multidimensionality, and interpenetration of their human rights activities. The authors also identify the central challenges, particularly for the UK in the post-Brexit era, where the components of each system need to be carefully distinguished and disentangled.

The European Convention on Human Rights and General International Law

The European Convention on Human Rights and General International Law PDF

Author: Anne van Aaken

Publisher: Oxford University Press

Published: 2018-09-20

Total Pages: 300

ISBN-13: 0192565532

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The European Court of Human Rights is one of the main players in interpreting international human rights law where issues of general international law arise. While developing its own jurisprudence for the protection of human rights in the European context, it remains embedded in the developments of general international law. However, because the Court does not always follow general international law closely and develops its own doctrines, which are, in turn, influential for national courts as well as other international courts and tribunals, a feedback loop of influence occurs. This book explores the interaction, including the problems arising in the context of human rights, between the European Convention on Human Rights and general international law. It contributes to ongoing debates on the fragmentation and convergence of international law from the perspective of international judges as well as academics. Some of the chapters suggest reconciling methods and convergence while others stress the danger of fragmentation. The focus is on specific topics which have posed special problems, namely sources, interpretation, jurisdiction, state responsibility and immunity.

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