Positive obligations under the European Convention on Human Rights : within and beyond boundaries / Vladislava Stoyanova.

Format:

Book

Author/Creator:

Stoyanova, Vladislava, author.

Series:

Oxford scholarship online.

Oxford scholarship online

Language:

English

Subjects (All):

Human rights--Europe.

Convention for the Protection of Human Rights and Fundamental Freedoms (1950 November 5).

European Court of Human Rights.

Europe.

Physical Description:

1 online resource (319 pages)

Edition:

First edition.

Place of Publication:

Oxford : Oxford University Press, 2023.

Summary:

'Positive Obligations under the European Convention on Human Rights' provides novel insight into the elements underlying a state's responsibility to fulfil positive obligations. It is essential reading for academics, legal practitioners, and policymakers working across the diverse fields in which positive human rights obligations may apply.

Contents:

Intro

Title Page

Copyright Page

Preface

Contents

Table of Cases

Introduction

1 Deconstructing Positive Obligations

1.1 The State as an Institutional Mediator

1.2 Justifications for Positive Obligations

1.3 Plurality of Obligations Owed by the State

1.4 Priority of Rights as Organizational Principles

1.5 Trigger, Scope, Content, and Types of Positive Obligations

Conclusion

2 State Knowledge

2.1 The Role of Fault in State Responsibility

2.2 Triggering and Breach of Positive Obligations under ECHR

2.3 Actual Knowledge versus Putative Knowledge

2.3.1 Different Possible Ways of Assessing Putative Knowledge

2.3.2 State Knowledge Necessarily Implies Normative Assessment

2.4 Assessment of Knowledge

2.5 No Benefit of Hindsight

2.6 Burden of Proof

2.7 The Nature and the Level of Risk

2.7.1 The 'Real and Immediate Risk' Standard

2.7.2 Man-made versus Natural Harms

2.8 Contributory Fault of the Victim

3 Causation

3.1 The Role and the Standard of Causation

3.2 Control and Causation

3.2.1 The Rules on Attribution

3.2.2 The Role of Control and the Extension of the Logic of the Rules on Attribution

3.2.3 Control and Prevention of State-inflicted Harm

3.2.4 Assumption of Control in the Area of Public Services

3.2.5 Source of the Harm and the Related Level of Control

3.2.6 Assumption of Control over the Victim

3.3 Techniques for Avoiding Causation

3.3.1 Domestic Legality

3.3.2 Procedural Protection

3.4 Technique for Limiting Responsibility when Causation is Present

4 Reasonableness

4.1 Intertwinement with Knowledge and Causation

4.1.1 Weak Causation Counterbalanced by the Reasonableness Standard.

4.1.2 Strong Causation Counterbalanced by the Reasonableness Standard

4.1.3 Reasonableness and Immediacy of the Risk

4.1.4 The Importance and the Justifiability of the Analytical Distinctions

4.2 Consideration of Alternative Protective Measures

4.2.1 Levels of Abstraction/Concreteness and the Burden of Proof

4.2.2 Place and Formulation of the Alternative

4.2.3 The Standard of Protectiveness

4.3 Margin of Appreciation

4.3.1 Delineation between Structural Deference and Appreciation of Alternatives

4.3.2 Scrutiny in the Appreciation of Alternatives

5 Competing Obligations

5.1 Specification for Tensions to Become Cognizable

5.2 The Distinction between General Interests and Interests that Form the Basis of Human Rights

5.3 Addressing the Competition

5.3.1 Equal Moral Status

5.3.2 The Relative Importance of the Interests and the Obligations Triggered

5.3.3 Action versus Omission

5.3.4 Determinacy of the Harm and the Affected Individuals

5.4 Accommodation of Obligations

6 Procedural Positive Obligation to Investigate

6.1 Conditions that Trigger the Obligation

6.1.1 Harm Inflicted by State Actors

6.1.2 Harm Inflicted by Non-state Actors

6.1.3 Harm Linked with Arguable Omissions

6.2 Content and Scope of the Obligation

6.2.1 Type of Proceedings

6.2.2 Initiation of the Proceedings

6.2.3 Effectiveness

6.2.4 Cooperation with Other States in Cross-border Contexts

7 Substantive Positive Obligations

7.1 Obligation to Develop Effective Regulatory Frameworks

7.1.1 Diversity of Regulatory Spheres and the Role of Criminal Law

7.1.2 Types of Deficiencies in the Regulatory Framework

7.1.3 Concrete or Abstract Reasonableness Review of the Regulatory Framework.

7.2 Obligation to Develop Effective National Procedures

7.2.1 Not a Self-standing Positive Obligation

7.2.2 The Content of the Obligation

7.3 Obligation to Take Protective Operational Measures

7.3.1 The Test as Originally Developed in Osman v the United Kingdom

7.3.2 Modifications of the Test Regarding the Actors of Harm, the Objects of Harm, and the Immediacy of the Risk

7.3.3 Adjustment of the Test by Adding Risk Assessment as an 'Integral Part'

7.3.4 Adjustment of the Test by Adding Harm-related, Temporal, and Geographical Specifications

7.3.5 Content and Scope of the Obligation-the Operational Measures

8 Extraterritorial Positive Obligations

8.1 Positive Obligations' Normative Preconditions

8.1.1 The Role of the State in Society

8.1.2 Democratic Legitimacy and Territorial Boundedness

8.1.3 Not Contingent Exclusively on Actual Capacity

8.2 Deconstructing Jurisdiction

8.2.1 The Territorial Paradigm

8.2.2 Effective Control over an Area

8.2.3 Physical Power and Control over a Person

8.2.4 Acts of Diplomatic and Consular Agents

8.2.5 Exercise of Public Powers

8.2.6 Extraterritorial Effects

8.2.7 Procedural Link

8.2.8 Conclusion

8.3 Adapting Jurisdiction to the Obligations?

8.3.1 Dividing and Tailoring

8.3.2 Dividing the Tailoring Brought to a Breaking Point

8.3.3 Conclusion

8.4 Deconstructing Extraterritorial Positive Obligations

8.4.1 Legality and Legal Competence

8.4.2 Reasonableness and Balancing of Interests

8.4.3 Causation

Select Bibliography

Index.

Notes:

This edition also issued in print: 2023.

"This is an open access publication, available online and distributed under the terms of a Creative Commons Attribution - Non Commercial - No Derivatives 4.0 International licence (CC BY-NC-ND 4.0)"--Title page verso.

Includes bibliographical references and index.

Description based on online resource and publisher information; title from PDF title page (viewed on October 4, 2023).

Other Format:

Print version: Stoyanova, Vladislava Positive Obligations under the European Convention on Human Rights

ISBN:

0-19-198215-6

0-19-288815-3

0-19-288816-1

OCLC:

1395181740