DISTINGUISHING BETWEEN NEGATIVE OBLIGATIONS AND POSITIVE OBLIGATIONS ON STATES IN THE CONTEXT OF HUMAN RIGHTS PROTECTION

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Northern Ireland Legal Quarterly

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Section I of this essay provides a definition of positive obligations, and more specifically of positive obligations in the private sphere. Section II formulates a legal critique of the doctrine applied by the Court to establish these obligations. Section III debunks this critique. Section IV concludes that the approach of the Court on the subject-matter is balanced and fruitful.

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European Law Journal

This essay analyses those statements that mention legal norms in negative terms. Specifically, it analyses those statements that define a legal system by mentioning how legal protection does not work and where legal protection ends, and those statements that identify what rights-holders do not have to with their legally protected free capacities. This essay argues that these statements address a systemic question. It calls such a dynamic as negative governmentality. The argument proceeds in four steps. It introduces the concept of negative governmentality by arguing that the idea of freedom requires both the positive affirmation of moral agency and the constraining of moral agency (Section 2). It then explores how rights constitute freedom by limiting rights or making exceptions to them (Section 3). Later, it analyses how rights-based norms prevent abuse of rights by holders of rights (Section 4). Finally, it sees how rights-based norms constrain the legal guarantor of rights, i.e., a state (Section 5). The essay concludes by mentioning the importance of negative governmentality (Section 6).

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In!light!of!the!doctrinal!innovations!of!the!latest!thematic!treaty,!the!United!Nations!Convention! on! the! Rights! of! Persons! with! Disabilities! (CRPD),! the! present! thesis! revisits! the! concept! of! positive!obligations!in!human!rights!law.!Having!as!a!main!point!of!reference!the!vision!of!the! human!being!upon!which!human!rights!law!is!based,!the!thesis!suggests!a!new!approach!towards! conceptualising!and!analysing!positive!obligations,!namely!in!terms!of!human!interactions.!Under! this!revised!schema,!positive!obligations!ought!to!be!defined!as!calls!for!assistance!to!enable!the! individual! to!reach!a!minimum!threshold!of!both!material!welfare!and!sociability.! In!addition,! upon!assuming!its!protective!duty!the!State!ought!to!ensure!that!in!delivering!its!services!it!also! forges!a!relationship!with!the!recipient!that!reflects!its!caring!role.!The!thesis!grounds!this!revised! understanding!of!positive!obligations!in!the!evolution!of!the!notion!of!autonomy!within!human.

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Can human rights impose positive duties to act, as well as negative duties constraining action? At first glance there seem to be strong reasons for wishing human rights could impose positive duties – such reasons include the promotion of welfare rights and the positive protection of liberty rights (e.g. police protection against assault). However, any attempt to construct rights-based positive duties threatens to dissolve hallmark features of rights. In this article the duty-properties possessed by uncontroversial rights-based negative duties are comprehensively analysed. Drawing on this analysis, a range of key properties is developed, including ‘regime-level right-holder universality’ and ‘many-to-one directedness’, as well as a ‘centres of pressure’ vision of rights, by which it is argued that positive duties can accord with the keystone commitments of rights-based moral theories. In so doing, a conceptual space for rights-based positive duties is defended.

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This is a draft version. For the final version of this article, please consult the Yearbook of European Law, volume 38, pp. 18-72 (2019).

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Edited version in: Daniel Moeckli, Sandesh Sivakumaran, Sangeeta Shah, and David Harris (eds.), International Human Rights Law, Oxford University Press (2010).

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