Comparison Positive vs. Negative Obligations

Abstract

So far I have discussed the broad lines of the Court's positive obligations case law, focussing on the different kinds of positive obligations recognised by the Court, as well as on the general principles governing the Court's application of the concept of positive obligations and on the tools used by the Court to delimit both the scope of the State's positive obligations and the Court's scrutiny thereof. Clearly, in the Court's practice, all of these different elements are combined and they interrelate in many different ways, constituting the complex and confusing whole that makes up the Court's positive obligations case law. By considering these elements separately for analytical purposes, I have tried to shed some analytical clarity in the complex area of positive obligations, enabling the reader to gain a better understanding of the Court's positive obligations practice. A final analytical question will be discussed in the next chapter, being how the Court distinguishes between positive and negative obligations. However, before turning to that question, it is necessary to make a case as to why the Court's construction of the positive/negative obligations dichotomy matters. If it did not matter at all whether a case is examined from the viewpoint from positive rather than negative obligations or the other way around, then the Court's construction of the dichotomy would hardly be a relevant object of study. However, as we will see in this section, which will critically compare the Court's positive and negative obligations jurisprudence, there are in fact consequences for the Court's legal reasoning and legal methodology attached to the use of the respective labels of positive and negative obligations. I will start with discussing the Court's construction of positive obligations as something exceptional as opposed to supposedly self-evident negative obligations. Subsequently, I will highlight the different structure of the Court's examination under Articles 8–11 of the Convention, depending on whether a case is considered as involving negative or positive obligations. Next, I will briefly recapitulate the differences in the application of the margin of appreciation doctrine, and I will highlight that the Court defers even more to the domestic authorities where a positive obligations case involves polycentric concerns, whereas such considerations are largely absent from its negative obligations case law.