This book identifies and explains the key analytical issues (state knowledge, causation, and reasonableness) that need to be considered in determining whether a State is responsible under the ...European Convention on Human Rights for omissions. In addition to this technical analytical question, the book also reflects upon what is at stake for the political community when the triggering, the content, and the scope of positive human rights obligations are determined. A central question is then how the search for a balance between intrusion and restraint by the State, between protection and freedom from invasion, defines this community and pulls the analysis of state responsibility for omissions in different directions. Designed to become the main reference source concerning ECHR positive obligations, this book makes four main contributions. First, it covers an important gap by isolating and studying the separate analytical elements (state knowledge, causation, and reasonableness) underlying state responsibility for failure to fulfil positive obligations. It explains the structure of review, the analytical steps taken to ascertain state responsibility for omissions. Secondly, the book offers a serious appreciation of the dangers associated with positive obligations whose scope might be too expansive or content too intrusive. Thirdly, it explains the different types of positive obligations. Fourthly, it offers the first examination of the conceptual hurdles if positive obligations under the ECHR were to be applied extraterritorially.
Abstract
Positive obligations under the European Convention on Human Rights can be framed with different levels of concreteness. The level chosen is essential for understanding the analytical ...distinction between the existence of an obligation and its breach. The level of concreteness is an important conceptual framework because it has an impact even on the possibility of making an assessment as to whether the State has breached the obligation, and on how this assessment is performed in the reasoning. Kurt v Austria is used to illustrate how positive obligations can be framed both in more abstract and concrete terms, and how the reasoning mediates between the two. The more it tilts towards a concrete formulation of the obligation, the more the Court appears to assume the role of a rule-maker, which is in tension with the principle that States have discretion as to the concrete measures to fulfill their positive obligations.
Abstract
Article 3 of the echr encompasses an absolute right not to be subjected to torture or to inhuman or degrading treatment or punishment. This right proscribes, and demands protection from, ...treatment which is antithetical to human dignity. Over the years, what amounts to such treatment - and the obligations flowing therefrom - has been the subject of extensive interpretation by the ECtHR and domestic courts. Applicable in many contexts beyond the conventional scenario of interrogational torture, the right's significance - and much of the backlash it has attracted - lies chiefly in the protections it demands for persons who fall through the cracks of the political process. This comment contemplates what is at stake, in terms of Article 3's protections, in a potential UK departure from the echr, and concludes that a loss of the protection offered under Article 3 echr would facilitate (further) inhumanity, particularly against persons who are already othered, under-protected, and victimised.
Uit een rapport van de Algemene Rekenkamer blijkt dat met name ouderen moeite hebben met het gebruik van DigiD. Dit artikel behandelt daarom de vraag of het verplicht stellen van DigiD als ...discriminerend kan worden beschouwd. Deze vraag wordt beoordeeld aan de hand van het non-discriminatie beginsel zoals vastgelegd in de Grondwet en het Europees Verdrag voor de Rechten van de Mens. Vervolgens gaat het artikel in op de vraag welke positieve verplichtingen de Staat heeft op basis van het EVRM omtrent de toegankelijkheid van DigiD. Dit artikel stelt dat de Staat verplicht is om stappen te ondernemen om DigiD toegankelijker te maken zoals het aanbieden van de huidige Digisterker cursussen. Wel is het noodzakelijk om verder te evalueren of deze cursussen effectief zijn. Het artikel benadrukt de bredere kwestie van digitale uitsluiting en de verplichtingen waaraan de Staat is gehouden met betrekking tot de toenemende digitalisering. Abstract In order to conduct safe electronic communication with its citizens the Dutch government uses DigiD to digitally establish their identity. According to a report from the Dutch Court of Audit, it appears that primarily elderly individuals struggle with the use of DigiD. This article, therefore, addresses the question of whether mandating the use of DigiD can be considered discriminatory. This question is analysed using the non-discrimination principle as codified in the Constitution and the European Convention on Human Rights (ECHR). Subsequently, the article discusses the positive obligations that the State has under the ECHR regarding the accessibility of DigiD. This article argues that the State is obliged to take steps to make DigiD more accessible, such as offering the current Digisterker courses. However, it is necessary to further evaluate the effectiveness of these courses. The article emphasizes the broader issue of digital exclusion and the obligations to which the State is bound concerning the increasing digitalization. Sleutelwoorden: non-discriminatie; Algemene wet gelijke behandeling; Grondwet; EVRM; positieve verplichtingen; DigiD; digitale uitsluiting
Abstract
This article explores the nature and content of international and EU obligations to adopt certain criminal domestic legislation, and the impact that they have on the Italian legislature. In ...light of relevant international, EU, and domestic law provisions, the article investigates what is required of Italy to implement obligations of domestic criminalisation. It is argued that the Italian legislature is bound to implement obligations of domestic criminalisation both under international law and the Italian constitutional law. The article ends with an overview of the legal consequences that Italy may face for failure to implement international and EU obligations of domestic criminalisation.
The paper aims firstly to assess the future of anti-discrimination measures and policies, above all through the lens of ethnic data utilization. The question posed is not only whether massive ...collection and usage of such data is viable in relation to its result, but also whether such ethnic data collection is an obligation incumbent upon state authorities, in international and European human rights protection systems in particular. On the other hand, this article aims to compare existence of such obligation with the existing standards on right to privacy and implications for this right stemming from such use of Big Data. The negative impact resulting from such obligation in this regard could weigh heavily on protection of personal data, currently one of the main concerns throughout Europe and the EU.
AbstractThis article investigates recent legal developments regarding the practice of so-called »LGBT+ conversion therapy«. It analyses what positive obligations the Nordic states bear to protect ...LGBT+ youth against practices of ‘conversion treatments’ under international and regional human rights law. It then goes on to consider the challenges of criminalizing ‘conversion therapy’ and reviews the new Norwegian draft law proposal on its criminalization. The article concludes that the rather limited Nordic debate on the issue has been narrowly focused on balancing the right to privacy against the right to religious freedom. Furthermore, it has failed to pay sufficient attention to the positive obligations states have to protect the dignity of vulnerable groups against degrading and cruel treatment. Finally, the article discusses how measures outside of the criminal law can be used to protect LGBT+ youth against practices like ‘continuing none-acceptance’ that do not fall within the scope of actual ‘conversion therapy’, but which can still cause long-term harm. The article argues that non-acceptance of a child’s sexuality or gender identity might amount to a breach of the parental guardian’s duty of care.
The European Court of Human Rights has struggled to integrate the lived experience of migrants into the legal reasoning that underlies a determination of human rights violations. This article ...introduces the concept of migratory vulnerability in an effort to remedy that shortcoming by making an already existing legal principle fit for the daunting task posed by migration cases. The objective is to preserve (and potentially expand) the legal effects of the principle of vulnerability whilst approximating it to the more consistent conception of vulnerability theorists, which would remove some of its ambiguities and negative side effects. Migratory vulnerability describes a cluster of objective, socially induced, and temporary characteristics that affect persons to varying extents and in different forms. It therefore should be conceptualized neither as group membership nor as a purely individual characteristic, but rather determined on a case-by-case basis and in reference to identifiable social processes. Depending on its specific expression, migratory vulnerability may give rise to distinct legal effects such as enlarged scopes of protection, shifts in the burden of proof, procedural and positive obligations, a narrower margin of appreciation, and possibly even the ‘triggering’ of proceedings under Article 14 ECHR.
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