Correlativity Between Human Rights and Positive Obligations and Its Role for the Execution of Judgments Delivered by the European Court of Human Rights

Abstract

Abstract States have discretion what concrete measures to undertake to fulfil their positive obligations under the European Convention on Human Rights (echr). If a violation is found, states also have discretion how to execute the judgment. Yet, when the European Court of Human Rights reasons to conclude whether there has been a violation, it necessarily specifies possible measures that could have been undertaken in the past so that the state could have complied with its obligations. The question at the heart of this article is whether this specification assists in the identification of future measures for the purposes of the execution of the judgment. Hohfeld’s correlativity model and the interest-based theory of rights are invoked. The specified measures indicated in the reasoning do not correlate back to rights. Consequently, any measures that might be commanded by the echr obligations remain vague, which does not assist states in their efforts to execute judgments.