Negative Obligations Research Articles

Balancing data protection and privacy – The case of information security sensor systems

This article analyses government deployment of information security sensor systems from primarily a European human rights perspective. Sensor systems are designed to detect attacks against information networks by analysing network traffic and comparing this traffic to known attack-vectors, suspicious traffic profiles or content, while also recording attacks and providing information for the prevention of future attacks. The article examines how these sensor systems may be one way of ensuring the necessary protection of personal data stored in government IT-systems, helping governments fulfil positive obligations with regards to data protection under the European Convention on Human Rights (ECHR), the EU Charter of Fundamental Rights (The Charter), as well as data protection and IT-security requirements established in EU-secondary law. It concludes that the implementation of sensor systems illustrates the need to balance data protection against the negative privacy obligations of the state under the ECHR and the Charter and the accompanying need to ensure that surveillance of communications and associated metadata reach established principles of legality and proportionality. The article highlights the difficulty in balancing these positive and negative obligations, makes recommendations on the scope of such sensor systems and the legal safeguards surrounding them to ensure compliance with European human rights law and concludes that there is a risk of privatised policymaking in this field barring further guidance in EU-secondary law or case law.

Justiciability of the Right to Water in the SADC Region: A Critical Appraisal

Weak justiciability of socio-economic rights almost circumscribes the trajectory of socio-economic development over time as individuals whose rights are violated cannot easily get a remedy through courts, which negatively affects the latter’s ability to meaningfully realize their development potential. The available literature on this issue is scant and disorganised and hence necessitating a critical appraisal. This review focuses on the justiciability of the right to water in the Southern Africa Development Community (SADC) focusing particularly on South Africa and Malawi. This is because socio-economic rights are clearly justiciable under South African law as opposed to the other SADC countries where national constitutions do not enshrine the right to water, and at best, the right to water can only be inferred from the right to life and to development. Deriving the right to water from other rights, and especially those that impose a negative obligation on the state, masks its importance and the likelihood that it can be justly adjudicated on. It is argued herein that for most of the other SADC countries to realize the right to water, the law should be crafted to expressly protect the right to water and this must be obvious in the respective constitutions, as well as other related water laws. This will enable courts to adjudicate disputes concerning water and possibly evolve jurisprudence that is responsive to the water needs of people according to their circumstances.

Konstytucja jako źródło obowiązków państwa w stosunku do obywatela

Konstytucja jest źródłem obowiązków państwa w stosunku do jednostki. Można wyróżnić obowiązki negatywne państwa, które polegają na nienaruszaniu praw jednostki, oraz obowiązki pozytywne, które wymagają od państwa działania, w tym również ochrony praw jednostki. Normy konstytucyjne statuujące te pierwsze obowiązki przynależą do kategorii reguł, a te drugie – do kategorii zasad. Państwo ma nie tylko obowiązek ochrony praw i wolności jednostki, lecz także obowiązek ich ograniczania wtedy, gdy jest to konieczne w demokratycznym państwie dla jego bezpieczeństwa lub porządku publicznego bądź dla ochrony środowiska, zdrowia i moralności publicznej, bądź też wolności i praw innych osób. Ograniczenia te nie mogą jednak naruszać istoty wolności i praw. Kolizja obowiązków państwa jest pochodną kolizji praw jednostki. Z tego powodu rozstrzyganie obu tych kolizji powinno być postrzegane jako jeden całościowy mechanizm ochrony praw jednostki.

The constitutional protection of property rights in European and United States systems – a comparative analysisVjosa Osmani-SadriuThe constitutional protection of property rights in European and United States systems

SEER Journal for Labour and Social Affairs in Eastern Europe , Seite 127 - 146

Suživot negatorijske zaštite od imisija i prava na život u zdravoj životnoj sredini

The authors analyse the national protection from emissions, in the first place, a property law component of this regime. Domestic regulation of the protection of property rights from harassment was brought in the perspective of the protection that the European Court of Human Rights provides for the right to live in a healthy environment, primarily through the protection of rights under Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (right to respect for private and family life and home). In the context of the latter, the authors have analysed the interpretative methods used by the European Court and explored the following features: the requirement that environmental and environmental impacts and disturbances violate the Convention right, that is, the existence of a specific Convention causal link; the category of minimum level of severity; oscillation of the "quantum" of minimum level of severity within conventional "fluctuations"; and the scope (and type) of protecting the right to live in a healthy environment through the paradigm of the positive / negative obligations of the Contracting States.

How Exceptional Must ‘Very Exceptional’ Be? Non-Refoulement, Socio-Economic Deprivation, and Paposhvili v Belgium

Since N. v. the United Kingdom, an exceptionally high threshold has been applied to migrants who try to avoid expulsion in order to continue to receive medical assistance in the returning state. With Paposhvili v. Belgium, the Grand Chamber of the ECtHR recognized the ensuing protection gap and modified the standards. These modifications imply a small opening of the ‘very exceptional’ standard to the effect that risk of imminent death is no longer the threshold, but rather ‘a serious, rapid and irreversible decline’ in the migrant’s health upon removal. The Court clarified the factors to be considered for evaluating the development of the migrant’s health condition in case of expulsion. These factors, together with the requirement for seeking ‘individual and sufficient assurances’ that care will be provided from the receiving state as a precondition for removal, channel the evaluation of the risk towards a more careful consideration of the individual circumstances of the specific migrant. Despite these promising developments, the underlying reasoning in the non-refoulement medical cases under Article 3 of the ECHR remains riddled with inconsistencies and questionable premises. These relate to the framing by the Court of the obligation not to refoule as a negative obligation, a frame which the Court explicitly adopted for the first time. This frame is, however, difficult to reconcile with the ‘very exceptional’ standard as underpinned by the distinction between ‘natural’ sources of harm and intentionally-inflicted harm. It is also disturbing that Paposhvili v. Belgium reflects a move in favor of procedural protection and a sidelining of substantive protection at the European level. (Less)

(In)formal Migrant Settlements and Right to Respect for a Home

Abstract Across European cities, migrants without access to state facilities, resort to living in ‘makeshift camps’ or squats. These settlements are usually evacuated and demolished by state authorities. Instead of discussing the state’s positive obligation to provide decent housing, this article focusses solely on the state’s negative obligations under the right to respect for a home as laid down in Article 8 of the European Convention of Human Rights (echr). Drawing upon the cases of Calais and Amsterdam, this article scrutinizes domestic case law about evictions from (in)formal migrant settlements and compares that to case law of the European Court of Human Rights (ECtHR). We argue that the ECtHR case law provides a relevant framework that should be used to evaluate the legitimacy of evictions and destructions of (in)formal migrants’ settlements. Despite the fact that applying this framework would not entail a complete ban on evictions, it would provide some welcome (procedural and substantive) protection for migrants.

Responsibility in Connection with the Conduct of Military Partners

This article analyses situations in which States and international organizations partnering in military operations can bear responsibility in connection with conduct attributed to another. When engaging in military cooperation, a variety of international norms providing for obligations in relation to others should be taken into account. These include negative obligations not to assist or direct military partners in engaging in conduct violating international obligations, and positive obligations to take steps to ensure that military partners do not commit wrongful conduct. Taken together, they result in a framework which regulates military collaboration by determining thresholds where implication in the conduct of another, or lack thereof, engages responsibility. The aim of this article is to clarify and to conceptualise this framework, so as to provide an analytical background on the basis on which military officials can determine the proper balance between excessively permissive attitudes fostering violations and unnecessarily precautionary approaches hindering military cooperation. Based on a comprehensive review of relevant rules found in the ILC articles on the responsibility of States and of international organizations, international humanitarian law, and international human rights law, the article identifies four key criteria to allocate responsibility in connection with the wrongful conduct of military partners: knowledge, capacity, diligence, and proximity. In addition, the article offers some perspectives on the apportionment of legal consequences such as reparation.

Command Responsibility in Peacekeeping Missions: Normative Obligations of Protection in a Criminal Law Environment

The passive stance taken by respectively Belgian and Dutch peacekeeping commanders towards the commission of genocide in both Kigali (Rwanda) and Srebrenica (Bosnia Herzegovina) has been challenged in domestic courts in recent years. As a result, the individual responsibility of the peacekeeping commanders involved has been addressed. Peacekeeping operations' distinct, normative character combined with the remoteness of peacekeeping troops vis-a -vis the parties to the conflict complicate any legal assessment made regarding the commanders' accountability under international criminal law. This article explores whether a separate type of command responsibility could be developed to fit the specific circumstances in which military commanders operate, based on the command responsibility applied to occupation commanders in post-Second World War trials. Situations of occupation and peacekeeping are characterised by a similar focus on positive rather than negative obligations of protection. Such a normative context may influence how their criminality is perceived. Therefore, this article considers the use of the German Funktionslehre to differentiate between security control and custodial control. That distinction could separate 'peacekeeping command responsibility' from regular command responsibility. Culpability would then be incurred for the failure to act rather than for the crimes committed by a commander's subordinates. Using such a context-sensitive approach to command responsibility for peacekeeping commanders could further a fair assessment of the commander's liability by taking the normative environment in which peacekeeping takes place into account.

Rejecting the free marketplace of ideas: a value-based conception of the limits of free speech

The robust protection of freedom of expression is not well-served by the assumption that the regulation of free expression may never take into account the content of the expression being regulated. The assumption fails to acknowledge that some forms of expression are far more valuable and in need of protection in a democracy than others. It also fails to acknowledge that some forms of expression threaten democracy and the dignity of those who live in it. The idea of a content neutral approach to the protection of freedom of expression should, therefore, be rejected as it is not useful for the effective protection of freedom of expression in a democracy that respects human dignity and diversity. To the extent that free expression is believed to operate in a free marketplace of ideas, it furthermore fails to identify (and may even mask) some of the most pressing threats posed to a thriving free expression culture. Instead, turning to the South African Bill of Rights – with its general limitation clause – will provide for a far more nuanced and effective approach to the possible limitation of free expression, provided that certain important safeguards are put in place. The article therefore argues that we should reject the metaphor of the free marketplace of ideas and should, instead, turn to the idea that freedom of expression’s protection depends to some extent at least on whether it advances, protects or reflects the values that form part of the ‘objective normative value system’ embodied in the South African Constitution. The article concludes by arguing that the problems raised by the metaphor of free marketplace of ideas can at least partly be addressed by reimagining freedom of expression as a right that places not only negative obligations on the state to refrain from interfering with the right of individuals to receive and impart information and ideas, but also as a right that places positive obligations on the state to take steps progressively to extend the ability of individuals to receive and impart ideas and to access a more diverse array of information and ideas.

The Duty to Prevent War Crimes: Transforming Russia's Veto Power in the Security Council?

One of the biggest threats to the international order is the aid and assistance of stronger States to weaker States engulfed in civil wars. Equally threatening is the failure of stronger States to exercise their influence over weaker States to prevent violations of the laws of war in such armed conflicts. This article is about these two threats. It addresses the duty of States to ensure respect for the Geneva Conventions, with a particular focus on Russia’s respective duties vis-a-vis the Assad regime in the Syrian armed conflict. It analyzes Russia’s negative and positive obligations to prevent war crimes in Syria, with a core discussion of whether the latter affect Russia’s right to veto Security Council resolutions. Notwithstanding a negative answer to the foregoing, this article argues that Russia’s acts and omissions in Syria have breached Common Article 1 of the Geneva Conventions.

The Role of the ECHR and Other Human Rights Bodies During the Ukrainian Conflict, Its Eventual Settlement and Aftermath

The present research looks into the inter-state and quasi-inter-state cases examined by the European Court of Human Rights (“the Court”) linking them with the context of Ukrainian conflict in Crimea and its Eastern part. It puts emphasis on the challenges that the Court has met in its previous cases, from the perspective of the States in dispute, and wonders on the outcomes of the Ukrainian inter-State and quasi-inter-State pending litigations. The paper observes briefly the executional perspectives and, finally, proposes some short-term scenarios of how these litigations may evolve. It starts by a general introduction into the contexts and developments of inter-state and quasi-interstate adjudication under the European Convention on Human Rights (“the Convention”), underlining in particular aspects relevant for the pending Ukrainian disputes. Then it outlines the general question of extraterritorial States’ jurisdiction and the Court’s specific interpretation from the Convention Human Rights Law perspective, in comparison to general meaning as given by other international adjudication bodies. All relevant elements from both summaries are supported by the Court’s case-law leading cases. Turning to the Ukrainian conflict situation, the paper surveys landmark Convention cases concerning the so-called “frozen conflicts”, reflecting rather the Court’s reasons between the lines and behind its official rulings; what tactic the Court usually employs dealing with the inter-States disputes and how these cases have been evolved so far under the Convention mechanism, including their execution stage. The paper will list similar zones with “on-going” and/or “frozen conflicts” that already gave raise to systemic problems and massive violations leading to multiple cases being brought before the Court (such as the Transnistrian region of the Republic of Moldova; the Nagorno-Karabakh region of Azerbaijan and its conflicting jurisdiction with Armenia; the Northern Cyprus region and the extensive jurisdiction of Turkey, as well as Abkhazia and South Ossetia, conflictual zones of Georgia). The author assesses how the autonomous interpretation of the jurisdiction under the Court’s case-law has been applied to all these cases and, therefore, what are the effects in terms of the state’s positive or negative obligations under the Convention in these zones. Then, the paper will illustrate types of cases and applications coming from conflictual zones, in particular inter-State cases and individual applications, which may become quasi-inter-States disputes. In the end, the present paper dares to make some assumptions concerning a potential development of the Ukrainian human rights complaints brought before the Court (be that inter-State or quasi-inter-State cases). It will be mainly a hypothetical exercise and speculative scenario, which however will be construed on the above research and overview of the previous cases. It will refer solely to the on-going international disputes over the Crimea region and military conflicts in the Eastern regions of Ukraine, from jurisdictional perspective of both States in dispute. However, no valuable predictions will be possible concerning the merits of the Ukrainian cases and the executional reaction, though some general ideas and examples will be mentioned.

Hijack Attempts in Assemblies: the Case of Conflicting Freedoms from the European Perspective

In line with the widely accepted rule that states have both negative and positive obligations towards peaceful assemblies, the assemblies are now protected from violent disturbances and provocations by other individuals. Non-violent disturbances, however, remained completely out of our focus. In this essay, the problem is named 'hijack attempts in assemblies' and the author aims to define it in order to find its solution in the future. The reader's attention is brought to the distinctive elements of the problem: (1) characteristics of assembly, (2) the nature, intensity and context of the distortion, as well as (3) concurring and dissenting opinions. Dangers stemming from the hijacking are also examined. The final part is dedicated to the relationship between freedom of assembly and freedom of expression. Theoretical aspects of the problem are illustrated in practical examples. The leading case is the Civil March for Aleppo case, which was the first one to draw the author's attention. Two judicial decisions (the US Supreme Court and The German Federal Constitutional Court) are presented to show what difficulties follow the conflict in practice and to extract principles that can be of guidance. Nevertheless, the author vows not to be bound by a particular jurisdiction. Resolution of the problem that is offered at the end draws from functional arguments and aims at satisfying those who approach the problem from the angle of normative, rather than analytical jurisprudence.

A praxis-based understanding of new duty bearers examining contextual realities in the DRC

ABSTRACTThe debate about legal accountability for human rights is routinely conducted from a legalistic or institutional point of view, which often leads to the conclusion that there is no legal ground for expanding the notion of duty bearers. In this article, we ask whether disenfranchised rights holders themselves are supportive of a broader understanding of duty bearers. We assess the nature of the local discourse on duty bearers in several villages in the Kongo Central province of the Democratic Republic of Congo and analyse this understanding in light of the discussion at the international level. In doing so, we supplement the legal-conceptual discussion on duty bearers with new empirical material in an effort to build global norms on local human rights understandings and to render the human rights discourse more relevant for local rights holders. We argue that there is local support for extending the notion of ‘duty bearer’ to non-state actors in this case, and that the case underlines the need for an integrated multiple duty-bearer framework. At the same time, we warn of pitfalls in the local understanding, which portrays non-state actors’ obligations as an alternative to state obligations and accountability, which risks letting the state off the hook. This risk is exacerbated by the current non-existence of hard law regulating the negative and positive human rights obligations of new duty bearers.

Food Prints on Human Rights Law Paradigms

This paper discusses the interaction between the development of legal theory on human rights (HRs) in general and on the right to food in particular. In international treaties HRs are often subdivided in two groups: civil and political rights (CPRs) on the one hand, and economic, social and cultural rights (ESCRs) on the other. These two sets of rights have been treated in fundamentally different ways. A judicial practice developed only for the application of CPRs. This gave rise to a paradigm in legal theory stating that CPRs give negative obligations to the state (e.g., obligations not to interfere with the freedoms of citizens), while ESCRs give positive obligations (e.g., obligations to provide certain preconditions of life). Negative obligations can be enforced against the state. Positive obligations are unenforceable policy directives. The UN views HRs as indivisible. ESCRs should empower people just as much as CPRs do. The special rapporteur on the right to food, Asbjorn Eide, coined a new paradigm to this effect. It connects negative and positive state obligations to all HRs. This paper argues that it is time for the next step in HR theory: a paradigm that moves beyond state obligations.

State Obligations to Regulate and Adjudicate Corporate Activities Under the European Convention on Human Rights

This study examines State obligations to prevent and redress corporate-related human rights violations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. It discusses the evolving jurisprudence of the European Court of Human Rights in two areas of international legal doctrine of particular relevance to the business and human rights debate: the application of international human rights obligations to non-state actors (the public-private divide); and the jurisdictional scope of international human rights treaties (the territoriality-extraterritoriality divide). The study revises and updates a 2010 contribution to the mandate of the Special Representative of the United Nations Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Entities John Ruggie. The introduction offers an overview of the global regulatory framework on business and human rights. Part B systematises the case law of the European Court of Human Rights (ECtHR) on the public-private divide in terms of two categories of State obligations: negative obligations to respect human rights in relation to corporations acting as state agents; and positive obligations to protect human rights in relation to corporations acting as third parties. Part C discusses the ECtHR’s approach to the extraterritorial dimension of State obligations to prevent and redress corporate-related human rights violations. The study discusses cases of direct extraterritorial jurisdiction (acts ‘performed’ outside the State’s territory) and extraterritorial effects cases (acts ‘producing effects’ outside the State’s territory), and their respective relevance to the business and human rights domain. Consideration is also given to the growing body of case law on the extraterritorial dimension of the human right to remedy, which remains a pressing concern in the business and human rights domain.

Ograničenja prava na neometano uživanje imovine u praksi Evropskog suda za ljudska prava

The right to property is regulated by Article 1 of Protocol No. 1 to the European Convention on Human Rights. The basic aim of this article of the Convention is to protect every person from unlawful interference by the state in the peaceful enjoyment of property. Such a negative obligation includes, for example, the prohibition of expropriation of property, as well as the planning of restrictions or the temporary seizure of property. Any interference by a public authority with the right to peaceful enjoyment of property must be lawful, that is, it must have a basis in domestic law, which should be sufficiently precise and predictable. Also, the interference with the right to property must follow a legitimate aim. It is only permitted in the public interest, and control of the use of property is carried out in accordance with the general interest. The interests of an individual affected by a measure of violation of the right to property should be balanced with the interests of the general public. The interference should not represent an excessive or disproportionate burden on the individual. It is necessary for the state to introduce control measures that include determination whether a measure is appropriate for achieving its goal and whether it is proportionate. Interference in property rights does not constitute a violation of Protocol 1 to the Convention if the owner receives the appropriate compensation for damages, which constitutes a fair satisfaction.

The complex structure of the absolute prohibition of torture: comments in the light of the regulation of article 3 of the European Convention on human rights

Abstract: The complexity indicated in the title of this paper does not refer purely to the internal structure of the prohibition of torture, but also to the obligations of States party to the ECHR that are tied to this prohibition. This is because it is not restricted to negative obligations understood as a duty on the part of the State to abstain from certain interferences by the public authorities and which was the fundamental purpose of the ECHR and as such was entered explicit into the normative structure of the freedoms and rights defined in the ECHR , but embraces – firstly – positive obligations which result in a command to take measures for the purpose of ensuring freedom from the said torture for persons under the jurisdiction of States that are party to the ECHR, both in horizontal and vertical relations, and – secondly – a procedural obligations which, year by year, is achieving an ever more autonomous position among the types of commitment resulting from the ECHR for States and the essence of which is the effective clarification of circumstances in the violation of the prohibition of torture.
 Keywords: Human Rights. Torture. Ill-treatment. Positive and negative obligations.

Негативные обязательства в контексте реформы российского гражданского права

Негативные обязательства в контексте реформы российского гражданского права

The right to development-in-environment and its ecological and developmental thresholds

In Fuel Retailers, the Constitutional Court laid a solid foundation for an integrated understanding of the right to development-in-environment protected by s 24 of the Constitution. However, a robust jurisprudence realising s 24’s transformative potential has failed to blossom. This article provides a theoretical basis for conceptualising s 24 as an integrated, multi-dimensional socio-economic right. However, because s 24 differs from traditional socio-economic rights as a result of a greater potential for internal conflict between negative and positive obligations. Accordingly, the givenness and vulnerability of the environment, the potential for retrogressive measures, and the need to consider future generations, the model of judicial review developed in socio-economic rights jurisprudence is not fit for purpose. In exploring a sui generis model of review, this article argues for the recognition of ecological and developmental thresholds in scoping the normative content of the right. The identification and understanding of such thresholds can draw upon the work being done on planetary and social boundaries which are aimed at defining a ‘just and safe operating space for humanity’.