Positive Obligations Research Articles

Freedom of Association under the Treaties of the United Nations: A Right of Intrinsic or Instrumental Value?

Abstract Although enshrined within various international instruments of the United Nations, the right to freedom of association is principally developed under the rubric of Article 22 of the International Covenant on Civil and Political Rights. This article seeks to trace the contours of this right with regard to the jurisprudence and commentary of the institutions of the UN. Part ii examines the protections afforded, restrictions permitted, and positive obligations imposed by article 22. Part ii analyses the interaction between article 22 and other rights guaranteed by the iccpr. Part iii seeks to assess the rationale underpinning the protection of the right to freedom of association as protected by the UN treaties. The research finds that the Human Rights Committee has disproportionately framed Article 22 in terms of its political and systemic significance, and have neglected to develop a philosophical basis for the right deriving from its inherent value to the human person.

Mutualism: a model for managing risk in P2P sharing

Abstract This article explores how the risk structure currently adopted by the sharing economy, in particular the highly formalised and contrived systems of contract constructed by platforms, is largely constituted by the rules of property law. This effectively ties sharing activities to the old model of private property and its accompanying boundaries of privatised risk and value and undermines the efforts of collaboration to supersede those boundaries through peer-to-peer co-production of value. This article aims towards presenting an alternative model of risk distribution for the sharing economy that is more reflective of its collaborative nature. To this end, I will draw on ideas from commons and mutualism and propose the possibility of creative use of contracts to stipulate positive duties and obligations between collaborative partners as a device to construct a collective and/or mutual risk system.

The category of legal obligation in the judicial practice of the ECtHR

It is indicated that the category of duty, as opposed to the rights and freedoms of a person and citizen in the context of studying the content of the Convention and its interpretation in the practice of the ECtHR, has not yet become the subject of a comprehensive study. That is why we believe that the study of the understanding of the obligation in the content of the Convention and the corresponding practice of the ECtHR will be of urgent importance for legal science. The activity of the European Court of Human Rights on the application and interpretation of the Convention on the Protection of Human Rights and Fundamental Freedoms is increasingly gaining importance, particularly in the aspect of interpreting certain legal phenomena. The reason for this trend is the fact that the norms of the Convention on the Protection of Human Rights and Fundamental Freedoms are formulated extremely comprehensively from a content point of view, so their meaning in all the variety of content manifestations is revealed precisely in the practice of the European Court of Human Rights. The interpretative activity of the ECtHR is also of great importance for ensuring the principle of legal certainty. It is the interpretation of legal norms that allows the subject of law to understand their essence, purpose and purpose, as well as to correctly use such norms in certain legal situations. In addition, the interpretative activity of the Strasbourg Court is a tool for increasing the effectiveness of the implementation of convention norms and the level of protection of the legal rights and freedoms of a person and a citizen. And although the practice of the ECtHR does not provide us with definitions of legal obligation, it almost does not indicate its signs, however, responding to the dynamic development of social life, the ECtHR comes to more and more relevant interpretations of the studied concept. A clear example of this is the ECtHR’s chosen approach to the interpretation of the state’s obligations in the field of human rights, which provides for ever wider variations, without singling out exclusively negative or positive obligations. In addition, from the content of the Convention, we identified the concept of «ordinary civic duties» and gave them a description based on the judgments of the ECtHR. Finally, we emphasized the use in the practice of the ECtHR of the concept of «obligation of due diligence», which has not yet been properly developed in domestic science, but plays an important role in the doctrine of obligations.

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

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.

A Practical Framework for Promoting Justice-Oriented Innovation in Radiology

This article argues that innovation should be guided by the values of the field it hopes to advance. As radiology has come to recognize its role in creating or perpetuating imaging disparities, it has become evident that imaging disparities may arise from innovations that fail to consider impacts on justice from the outset. Acknowledging that a radiologist’s deepest commitments as a physician involve doing no harm, doing good, and ensuring justice, we propose redefining stewardship in radiologic innovation to include a positive obligation to prioritize justice in innovation. Engaging in justice-oriented innovation requires an imaging disparity to be identified, understood, and targeted through a concerted developmental effort. To this end, we consider the structural changes necessary to achieve this objective and provide a template outlining a future for radiologic innovation that aims to mitigate imaging disparities. We provide a simple rubric by which innovative efforts can be deemed “justice-oriented innovations” in environments featuring a surplus of ideas and limited resources to facilitate their prioritization. Innovations that are likely to mitigate imaging disparities should have access to accelerated pipelines for development and commercialization.

Legal and medical aspects of the problem of postmortem donation in reproductive medicine

The reproductive system plays a crucial role in preserving the human race. The health of the reproductive system reflects not only the genetic viability of future generations but also overall health. It is also related to numerous human rights, including the right to life, liberty, personal integrity, health, education, and the principle of equality and non-discrimination. The state, on the other hand, has positive obligations to ensure the observance, protection, and implementation of reproductive rights. Everyone has the right to the highest attainable level of physical and mental health. Any individual or couple has the right to decide how many children to have, when to have them, and at what intervals, even if it involves postmortem reproduction. That is why it is necessary to pay attention to the need to ensure the rights of servicemen to biological paternity (motherhood), which is extremely important, especially in the context of martial law in Ukraine.Despite some controversial aspects arising in the context of postmortem donation in Ukraine, it is the duty of the legislator to adopt laws and create legal provisions that can properly regulate this area. In doing so, the principle of proportionality should be taken into account, which can help to achieve the necessary balance between personal integrity and respect for the body after death, on the one hand, and the right to family, on the other. It should be understood that the experience of states at war has highlighted the urgency of postmortem donation and the position of society on its legal integration along with other areas of social relations that are subject to regulation. Military service, given its daily risks, can certainly compromise fertility, particularly through genitourinary trauma that can be associated with combat, gonadotoxic exposure, and physical separation from a partner.In addition, the issue of disposing of oocytes in case of death or declaration of death of a servicewoman remains unaddressed. Implementation of postmortem donation in the event of the death of a female military service member is possible only through surrogate motherhood. However, the current legislation in this area does not regulate the possibility of in vitro fertilization after the death of one of the spouses and completely “bypasses” any derivative issues related to surrogate motherhood after death.

Copyright as an Access Right: Concretizing Positive Obligations for Rightholders to Ensure the Exercise of User Rights

Abstract The legal frameworks that govern access to information are essential for safeguarding a sustainable, creative ecosystem. Institutions, such as libraries, research organizations, educational and other cultural heritage institutions, are gateways to diverse collections of scientific production, media and other cultural artefacts. Enabling access to creative works requires careful balancing of the interest of creators, producers of information, publishers and users of that information. While copyright law has traditionally recognized that rightholders enjoy exclusive rights, courts have only recently emphasized that users of works must also enjoy rights, which better reflects that copyright is based on a social contract with reciprocal obligations. This study explores what positive obligations must be imposed on rightholders as a consequence of the rights users enjoy under copyright law. Although specific access-enabling mechanisms already exist in EU copyright law, they are often not properly implemented or lack efficient enforcement tools. For that purpose, certain exceptions and limitations must be made mandatory, prohibitions on contractual override must apply horizontally, privileged institutions should enjoy enforceable rights to obtain copies on reasonable terms, and the existing ‘lending’ right must become a ‘right to lend’. Supporting these substantive changes is the proposal for a new governance structure for the EU copyright framework through the establishment of an independent EU regulatory body. It is only through a blend of changes that copyright can serve society and that a sound ecosystem for creators and creativity is set up making the EU fit for the knowledge economy.

On the Compatibility of the Democratic Rule of Law and the Self-Regulation of Meta: The Oversight Board as a Guardian of Freedom of Expression

The article examines the role of Meta in relation to the principles of the democratic Rechtsstaat. The perspective focuses on the importance of the human right to freedom of expression in a global network society, where Internet intermediaries, through their self-regulation and content moderation, have a crucial impact on the realisation of freedom of expression and, by extension, on democratic processes. Because of their influence, their self-regulatory systems can be seen as independent systems of norms, governed by fundamentally different principles from those of European nation-states committed to democracy, human rights and the rule of law – especially in the context of the European Union. This is of particular importance for public debate and the free expression of opinions, which are fundamental values in democratic societies. Social media both enables and, in some cases, limits the exercise of fundamental and human rights. They also share, or to some extent have even taken over, the institutional role of traditional media in society. The article takes a legal-theoretical approach to the subject matter, as it addresses the role of public debate in the digital environment as part of the legitimacy of the legal order itself. In this respect, the article analyses the relationship between Facebook and the public sphere, which is essential for democracy, and the role of the state in promoting freedom of expression in the online environment. The theoretical framework is based on Kaarlo Tuori's theory of the levels of law and the concept of democratic Rechtsstaat. Against this framework, Facebook/Meta is examined in a European context, which includes both the European Union and Council of Europe law. Most focus is put on the case law of the European Court of Human Rights. Through this framework, the role and position of the Oversight Board at the interface of human rights implementation and Meta's self-regulation will also be examined. Given the emphasis in the ECtHR's jurisprudence on the positive obligations imposed on the state, the article concludes that a more effective horizontal impact of fundamental and human rights is needed. This is supported by the conclusion that Facebook may not be considered as a well-suited public sphere for democracy.

Criminal law protection of private life in the context of negative and positive obligations of the state

The article examines the significance of the State of Ukraine’s fulfillment of the negative and positive obligation to ensure proper realization, non-interference and protection of the right to privacy for its criminal law protection. The author emphasizes the importance for each State which is a party to the European Convention on Human Rights to formulate a national criminal law policy around criminalization of socially dangerous encroachments on human privacy in the context of compliance with the provisions of Article 8 of the European Convention. The author reveals the concept and content of the negative and positive obligations of the State in this area. The author analyzes the doctrinal approaches to understanding the significance of the ECHR legal positions formed because of legal interpretation of the provisions of the European Convention as a source of criminal law and criminal law policy of Ukraine. The author develops the position that such legal positions are not a source of criminal law. The author concludes that the provisions of the Convention on ensuring respect for human privacy, as interpreted by the ECtHR in its judgments (whether in respect of Ukraine or any other State party to the Convention), may be recognized as grounds for criminalization in a narrow sense, which does not include penalization. Formation of two main approaches to understanding the “right to respect for private life” provided for in Art. 8, namely, as the state’s obligation not to interfere in the private sphere of a person (negative obligation) and as the state’s obligation to take active steps to protect this right (positive obligation), actually combines the right to non-interference by the state in the private life of a person and the right to respect, which is realized through the creation of effective mechanisms for the protection of the right to privacy by both state bodies and individuals. Thus, the need to fulfill the negative and positive obligations of the State to comply with Article 8 of the European Convention is a significant factor in the social conditionality of criminal law protection of respect for private and family life in the context.

THE FIRST STEPS IN IMPLEMENTING THE UKRAINIAN STRATEGY FOR RESTORING THE RIGHTS OF OWNERS OF CERTAIN CATEGORIES OF REAL ESTATE DAMAGED OR DESTROYED AS A RESULT OF THE ARMED AGGRESSION OF THE RUSSIAN FEDERATION

Background: In the context of war, the issue of compensation for damages caused by the military aggression of the Russian Federation against Ukraine is of utmost relevance, given the unprecedented scale of damage and the number of affected individuals. This article explores one of the existing methods for compensating damages related to the damage or destruction of certain categories of real estate as a result of hostilities, terrorist acts, and sabotage caused by the armed aggression of the Russian Federation against Ukraine through the state electronic public service “eRecovery”. This article explores the main aspects of the operation of this state service, including its limitations and the conditions for receiving compensation. Additionally, the article reviews a civil case involving a Ukrainian citizen against Ukraine for failure to fulfil its positive obligations and against the Russian Federation for the destruction of housing that resulted in material and moral damage. It also highlights the difficulties that may arise in the process of reparations paid by the Russian Federation. Protecting the rights and freedoms of individuals residing in Ukraine is the state’s duty, and during wartime, this task takes on new significance, becoming complex and extremely important. One way to provide such protection is through compensation for damages caused by the military aggression of the Russian Federation against Ukraine. However, developing a mechanism for such compensation requires the mobilisation of significant resources and additional research across various fields, primarily to ensure justice. It is essential to explore the legal grounds for compensation, criteria for damage assessment, possible methods and means of compensation, and potential cooperation between national and international institutions. Methods: This study analyses one of the ways to protect the rights of those affected by the Russian-Ukrainian war through obtaining compensation via the state electronic service “eRecovery”. In particular, it examines the following issues: current limitations regarding the objects eligible for compensation, the principles of operation and development prospects of the “eRecovery” state service, and the development and challenges of national court practices in disputes arising from the war. It also explores the state's positive obligations in the field of human rights and the measures Ukraine is taking to protect and restore the rights of the affected individuals. National and international opportunities for developing a compensation mechanism for the affected and the challenges Ukraine faces before receiving reparations from the Russian Federation are analysed. Results and conclusions: The results of this study highlight the state's ability to provide adequate protection to individuals affected by the Russian-Ukrainian war, particularly through the “eRecovery” electronic public service. The need for further development of the service has been identified to cover a broader scope of damages that Ukraine can compensate prior to receiving reparations from the Russian Federation, including through cooperation with international partners.

Środki generalne wykonywania orzeczeń Europejskiego Trybunału Praw Człowieka w polskich sprawach dotyczących sprzeciwów od decyzji lekarza odmawiających możliwości dokonania zabiegu terminacji ciąży

Full and proper implementation of the judgments of the European Court of Human Rights can be accomplished with general measures. Implementing them in the current legal system will allow future avoidance of suing the state before the Court in a similar case, as well as ensure the implementation of the positive obligations imposed on the states that have acceded to the European Convention on Human Rights. The purpose of this article is to present how Poland approaches the fulfillment of its obligation to implement the Court's judgment with regard to cases related to abortion. Using the dogmatic-legal method, the paper attempts to indicate what actions are being taken and what should be taken so that the implementation is considered correct and effective in the context of repairing the national legal system. The result of the analysis is the conclusion about the incorrect approach of Poland based on leaving matters "to their own course", which only leads to the increase of legal problems and the lowering of Poland's position in the international arena, as a state that does not fulfill its obligations.

ECtHR: Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (Application No. 53600/20, 9 April 2024)

The present paper focuses on the analysis of the landmark decision of the European Court of Human Rights in which the Court has, for the first time, ruled on human rights violation due to climate change. It begins with the description of the convention as a so-called living instrument that aims at the interpretation of the European Convention on Human Rights taking into account the current social circumstances and challenges, such as the growing need for environmental protection and addressing climate change. In the judgment in question, the Court held that Switzerland had violated the applicant's rights due to insufficient legislative measures to protect individuals from the adverse effects of climate change. As a result of the long-awaited but unconventional conclusion, the judgment has become the target of much criticism. The paper thus concentrates on the main seemingly innovative or rather surprising pillars of the judgment, such as the court's determination of locus standi, the scope of a state's positive obligations in the context of climate change and its related margin of appreciation, as well as the unprecedented consideration of scientific evidence. The paper concludes by summarising the possible implications of the court's arguments for similar future cases, which will undoubtedly increase in number.

Positive and Negative Obligations for Human Rights Protection: Classification Issues

The concepts of «positive obligations» and «negative obligations» have come into usage in interstate bodies for the protection of human rights. An analysis of international documents shows that a number of obligations contain features of both positive and negative obligations. The classification, which is based on the distinction between state non-intervention and its taking measures, has a number of shortcomings, which are pointed out by researchers who propose their own, more complex types of classification of obligations based on other criteria. The study revealed a number of contradictions between the classifications and interpretation of the content of obligations by treaty bodies, which explains the inappropriateness of using these classifications as a tool to provide guidance to states in choosing the most effective ways to fulfill their obligations under international human rights treaties. Based on a systematic and comparative legal analysis of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, as well as related acts of treaty bodies, the author concludes that obligations to protect human rights may have mixed ( or complex) nature.

The ECHR and the Positive Obligation to Criminalise Domestic Psychological Violence

Abstract This article explores the scope of the positive obligation deriving from the case law of the European Court of Human Rights (ECtHR) to criminalise forms of domestic psychological violence. This is primarily done by examining the implications of Volodina v Russia (No. 1), Volodina v Russia (No. 2) and Tunikova and Others v Russia regarding the obligation in question. Additionally, this article addresses different legislative approaches towards the criminalisation of domestic violence that have been distinguished by the ECtHR and discusses whether they adequately criminalise domestic psychological violence. Some approaches appear ill-suited as they concern national offences that focus on serious incidents. Domestic psychological violence, on the other hand, can involve a course of conduct consisting of seemingly minor incidents. It is concluded that State Parties should review to what extent such forms of psychological violence are criminalised under their national criminal laws.

Jurisdiction of a State Party under Article 2(1) of the ICCPR: A Comment on A.S. and Others v. Italy

Abstract In A.S. and others v. Italy, the question of the jurisdiction of a State party under Article 2(1) of the ICCPR is formulated as “whether the alleged victims could be considered to have been within the power or effective control of the State party”. Per HRC’s earlier views, one form of “within the power or effective control” of a State party may be identified by the impact on the enjoyment of rights caused by a State party’s action. This can be considered as the “functional impact model”. Apparently this is what the HRC applied in this case. But a State party’s inaction cannot cause any impact unless it owes prior positive obligations towards the allegedly impacted person. As the applicable instruments allow considerable discretion to a State party to decide whether to rescue the persons in distress at sea, Italy’s “obligations” to rescue and to cooperate do not necessarily trigger Italy’s positive obligations towards the relevant persons. Taking Italy’s jurisdiction as a consequence of the causal link between the sinking of the vessel and the resulting sufferings (and deaths in some cases) of the persons on the vessel and Italy’s decisions (inaction) is the result of an expansive and improper application of the special approach adopted in other cases. To be non-arbitrary, one may find that affected persons are “within the power or effective control” of a State party: (1) where harm is caused by affirmative acts of a State party, the impact can be deemed as a manifestation that the person impacted is “within the power or effective control” of the State party; or (2) where harm is caused by an omission of a State party, there must be a prior specific legal relationship between the allegedly impacted person and the State party.

THE APPROPRIATE FORM OF RECOGNITION AND PROTECTION FOR SAME-SEX COUPLES.CONSIDERATIONS ON THE BUHUCEANU CASE

One of the recent judgments of the Strasbourg Court brings to the fore topical issues in family life. A gradually building jurisprudence initially denied same-sex couples the right to family life under Article 8 of the Convention. Subsequently, the possibility for same-sex couples to benefit from the protection of that text was opened up and Member States were under a positive obligation to provide them with the appropriate legal framework for recognition. The European Court leaves it to the discretion of the States to decide which form of recognition and protection (in principle, the choice is between civil/registered partnership and same-sex marriage). This is the main problem raised by the Buhuceanu and Others v. Romania judgment, in terms of the failure of the Romanian State to fulfil its positive obligation. Most probably, the Romanian legislator will resort to the institution of civil/registered partnership, keeping same-sex marriage.

Protection of the Right to Property under Georgian Legislation and the European Convention on Human Rights

Abstract Disputes on property rights date back to the ancient times. Having undergone extensive development, the right to property can be protected through a vindication claim and actio negatoria which are the most common of the private legal means of protecting property rights within the domestic judicial proceedings in Georgia. Within the Council of Europe, “existing property” and legitimate expectations to acquire an asset are safeguarded by Article 1 of Protocol No. 1 to the European Convention on Human Rights, which enjoys supremacy over domestic legislation, including the country’s Constitution. The European Court of Human Rights differentiates between three rules on how protection of property is represented under this provision and interprets the state’s positive obligations in securing property rights, including through investigation.

Reducing risk of sexual harassment: a positive duty of care

The oil and gas sector has made progress towards becoming safer and more respectful for all employees. However, recent public reports, including the Western Australian Parliament’s ‘Enough is Enough’, and increasing engagement from National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), continue to demonstrate that sexual harassment remains pervasive across the industry – 32% of people still experience sexual harassment in their workplace. The social, physical, psychological, and financial costs of sexual harassment are devastating, both to individuals and employers. The damage can carry long-term business and reputational consequences. All Australian employers are under a new, legally enforceable positive duty to take ‘reasonable and proportionate measures’ to prevent sexual harassment. It requires proactive steps to ensure sexual harassment is prevented from happening in the first place. Vicarious liability provisions have been expanded so that employers can now be held accountable – even if no complaints are lodged. Employers require a clear framework to ensure they are meeting their positive duty obligations. There are three key areas that can enable the oil and gas sector to strategically leverage their compliance activities, maximising benefits for their business and for their people. These key areas include: (1) capability and engagement of leaders and management; (2) understanding the risk factors and drivers of sexual harassment for the industry, and for individual organisations; and (3) understanding employee experiences of psychological safety, culture, and behaviours.

Losing sight of the abuse: how and why women’s and children’s rights are violated in child contact decisions after intimate partner violence in Europe

ABSTRACT International human rights law sets out the right to life and freedom from torture and ill-treatment. This includes the positive obligation of states to prevent, protect and punish acts of private individuals that threaten the life and limb of another person. Permeating through many areas of law, this duty of due diligence is particularly important for women and children who require protection from abuse perpetrated by intimate partners or family members. The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence details these obligations, including in family law. Based on the work of the convention’s independent monitoring body (GREVIO), this article offers a categorisation of factors and mechanisms that thwart women’s and children’s rights in family law proceedings, resulting in unsafe child contact regulation after intimate partner violence. It shows the shared nature of these factors across several European jurisdictions and places them in context with the interpretative work of international human rights bodies and the European Court of Human Rights. Situating the discussion in the context of growing anti-feminist movements seeking to expand patriarchal notions of family authority, it argues for an understanding of family law processes as a setting for human rights violations.

Can the constitutional state accommodate the administrative state? Rousseau versus Hegel

ABSTRACT This essay inquires whether a constitutional state, understood as one ruled not by natural persons but by laws and legal decisions that free persons can endorse, can accommodate the administrative state, understood as one wherein executive agencies exercise law-making, statute-interpreting, and sanction-levying powers. Drawing from Rousseau and Hegel, it distinguishes between two stringent models of the constitutional state – a democratic-republican model and one ordered to an autonomous concept of Law – and compares their abilities to accommodate an executive with a robust law-making and statute-interpreting authority. The essay concludes that, whereas the democratic-republican model is hostile to the administrative state, the Law-centred model is at ease with it and allows it to flourish within bounds. The Law-centred model is thus the only one to reconcile a stringent concept of the constitutional state with the executive power that state needs to fulfil its positive obligations to its citizens.