The Disjunctive Structure of Positive Rights Under the European Convention on Human Rights

Abstract

The European Court of Human Rights (ECtHR or the Court) has consistently reiterated that states have discretion regarding what means to use to fulfill their positive obligations under the ECHR. Given the ‘wide range of possible measures’ that could be taken to ensure compliance with positive rights, these rights have a disjunctive structure, since an omission has no definitive counterpart. This article examines how the ECtHR deals with the disjunctive structure of positive rights and how it addresses alternative protective measures that could have been extended. In order to identify the main points of contention, I first draw on legal-theoretical literature that has grappled with the structure of positive rights. I then examine what the Court actually does when it adjudicates positive obligation cases under qualified and unqualified rights. I analyze how and why the review endorsed in the ECtHR’s judgments diverges from or converges with the theoretical model. Four main arguments emerge. First, while illuminating in many respects, the widely endorsed theoretical model has its limits in terms of structuring the human rights review in positive obligations cases. Second, the ECtHR follows a different analytical structure under qualified and unqualified rights in the context of positive obligations, a difference that the model does not account for, and that needs to be explored. Third, at least in the context of unqualified rights, the Court can explicitly reject the search for more protective alternatives. The understanding of this rejection necessitates a delineation of different meanings of the margin of appreciation. Fourth, in relation to both unqualified and qualified rights, variations can be observed as to how the concrete alternative positive measure is framed and as to where it is framed in the structure of the analysis.

Keywords: ECHR, Positive Obligations