Laurens Lavrysen

Human rights in a positive state: rethinking the relationship between positive and negative obligations under the European Convention on Human Rights

The rights guaranteed in the European Convention on Human Rights (ECHR) not only place negative obligations on the State to refrain from actions that interfere with human rights, but also positive ones that require the State to take action in order to ensure those rights. My dissertation provides an analytical inquiry into the application of the concept of positive obligations by the European Court of Human Rights. It is shown that the Court generally applies a less strict legal methodology when a case concerns a positive obligation than when it concerns a negative one. The central thesis of the dissertation is that the distinction between positive and negative obligations as emerging from the Courts case law is not sufficiently clear-cut to justify such differences. The dissertation proposes to remedy this shortcoming by approximating the legal methodologies applied under both modes of analysis.

Protection by the Law: The Positive Obligation to Develop a Legal Framework to Adequately Protect ECHR Rights

The European Court of Human Rights has recognized positive obligations to develop a legal framework to adequately protect the rights guaranteed by the European Convention on Human Rights (‘protection by the law’). This article examines both the substantive and the procedural guarantees that are encompassed by this legal framework. The article examines the rationale behind, as well as the extent of substantive and procedural ‘protection by the law’, thereby identifying the general principles that can be induced from the European Court’s jurisprudence. Where possible, the article compares the European Court’s approach with the one taken by the United States Supreme Court, and with the theoretical account of ‘protection by the law’ as provided by the German Constitutional law theorist Robert Alexy. The article further argues that ‘protection by the law’ could be the key to the proper application of the European Court’s margin of appreciation doctrine. Moreover, ‘protection by the law’ could be seen as a step in the direction of a more ‘constitutionalized’ positive obligations jurisprudence.

Strengthening the protection of human rights of persons living in poverty under the ECHR

In recent years, the European Court of Human Rights has developed a significant jurisprudence which illustrates the added value of the European Convention on Human Rights (ECHR) in the field of poverty. Building on the findings of Amartya Sens “capability approach”, the article examines the extent to which the Court has grasped the nature of poverty as “capability deprivation”. It is argued that, due to polycentric concerns and a reluctance to overcome the negative / positive obligations and civil and political / social and economic rights dichotomies, the Court has only, to a limited extent, done so. Subsequently, three approaches are examined that could allow it to better take into account the findings of the “capability approach” and that could allow for enhanced protection of the human rights of persons living in poverty under the ECHR: endorsing a more complex perspective on the responsibility of the state; analysing poverty as a failure to provide substantive equality; and recognising the vulnerability of persons living in poverty.