It we are simply human. Positive obligations mean that

It is hard to believe that there were once no such thing
as human rights, today many take them for granted in countries where the law is
well established. Our human rights can be defined as ‘rights inherent to all human beings,
whatever our nationality, place of residence, sex, national or ethnic origin,
colour, religion, language, or any other status. We are all equally entitled to
our human rights without discrimination.’1 When a state enters, and
becomes a member of an international treaty, they become under an obligation to
abide by human rights laws. States assume obligations and duties to firstly
respect (‘States must refrain from interfering with or curtailing the enjoyment
of human rights’)2,
protect (‘protect individuals and groups against human rights abuses’.)3
and fulfil human rights (‘take positive action
to facilitate the enjoyment of basic human rights’)4. Civil and political
rights are covered by the International Covenant on Civil and Political Rights
(ICCPR), it recognizes that ‘the ideal of free human beings enjoying civil
and political freedom and freedom from fear and want can only be achieved if
conditions are created whereby everyone may enjoy his civil and political
rights, as well as his economic, social and cultural rights”.5 The
Universal Declaration of Human Rights (UDHR) was the first legal document that
set out what fundamental human rights were to be protected universally. Fundamental
rights are rights given to us because we are simply human.

Positive obligations mean that a state is
obligated and has a positive duty to implement a certain right whereas negative
obligations refer to how a state should avoid human rights violations. ‘The rights guaranteed in the European
Convention on Human Rights (ECHR) not only place negative obligations on the
State to refrain from actions that interfere with human rights, but also
positive ones that require the State to take action in order to ensure those
rights.’6 The two terms are
very similar however, positive obligations look at what a state can actively do
to ensure human rights are being implemented whereas negative obligations do
the opposite, they refer to how a state can aim to avoid a violation in the
first place. The relationship between the two mean that states can protect the
fundamental, civil and political rights under international human rights law as
much as possible. The European Court of Human Rights (ECHR) first recognized the
existence of positive obligations after a case, concerning the Right to Life,
called LCB v UK7.

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Mostly always first to be covered in any major international and
regional human rights instruments is the right to life. This is not just the
right to survival or the right to say alive nor is it a right to be killed by
the state or anyone else. This right also includes certain positive state
obligations in order to protect life. In addition to this, it covers issues
regarding the beginning and ending of life clearing up issues of abortion and
euthanasia. Under the Human Rights Act 1998 Schedule 1 Part 1 Article 2 the
right to life is defined as

1          Everyone’s right to life shall be
protected by law. No one shall be deprived of his life intentionally save in
the execution of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.

2          Deprivation of life shall not be
regarded as inflicted in contravention of this Article when it results from the
use of force which is no more than absolutely necessary:

(a)
in defence of any person from unlawful violence;

(b) in order to
effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action
lawfully taken for the purpose of quelling a riot or insurrection.8

This is how the law is set out in
Article 2 of the ECHR however it is worded differently in all major
international and regional human rights instruments.

The ECHR first recognized that positive
obligations existed after the case LCB v UK9. In this
case, the applicant was claiming that the state (UK) had violated her right to
life under article 2 of the ECHR as she had been diagnosed with Leukemia that
she believed could have been mitigated if the right had been imposed. She
claimed that her father’s involvement in nuclear tests (before she was born)
whilst serving in the Royal air force was the cause of her illness. The
applicant believed that if the state had informed her and her family of the
health risks involved then she would have seeked medical advice earlier and so
her illness would have been mitigated. She claimed that the state had a positive
obligation to inform her family about the health risks of her father’s
involvement consequently, breaching this positive obligation, breaches her
tight to life. ‘Held, Article 2 of the Convention imposes a
duty upon the State and the issue therefore becomes whether the State had done
all it could in response to such duty.’10 The ECHR found that there was no violation as
the applicant had not provided substantial evidence to prove her illness could
have been mitigated.

 

States are obligated to follow laws and are under
a positive obligation to safeguard the lives of those within their
jurisdiction. Through different cases the right to life has become more and
more established over the years. One of the key cases regarding this human
right is McCann and Others v United Kingdom11 a claim
was made by a representative of the deceased; the SAS had travelled to Gibraltar
to arrest suspected members of the IRA as it had come to light a car bomb was
to be detonated. Rules had been laid down regarding when shootings were
allowed, when suspects supposedly reached for the detonator, the SAS shot and
killed the three suspected terrorists. The claimants claimed that there had
been a breach of Article 2 of the ECHR. When no violation was found, the
claimants appealed their way to the European Court of Human rights. Here, it
was found there was a breach and concluded that ‘the use of force must be no more than ‘absolutely
necessary’ and ‘strictly proportionate’ to achieving a legitimate aim.’12 In addition to this, it
is not enough for the person who is using lethal force, the fact that he/she
may believe that they should use lethal force is, simply, not enough. This case set the standard
for what ‘absolutely necessary’ means in the context of the ECHR.

 

‘A related positive obligation is the duty on
member states to provide individuals with suitable measures of protection
against immediate threats to their lives from third parties.’13 When
looking at what obligations the state are under to ensure the right to life is
not breached, positive obligations can only arise when authorities knew or
ought to have known of the existence of real and immediate risk of the life of
individuals. This was established in the case of Osman v UK14. In
this case Mr. Osman was killed by a teacher whom had become obsessed with his
son as he taught at the same school. The family and school had told the police
about the stalking, the police arrived at the defendant’s house with the
intention of arresting him however found he was absent. The defendant later
appeared at Mr. Osman’s home and shot him dead and seriously wounded his son.
The applicants complained that the authorities had failed to protect their
lives, a breach of article 2 of the ECHR. This case allowed the ECHR to come up
with a test for when the state is under a positive obligation or not.

 

‘The test as to whether a violation had
occurred in such situations was whether the authorities knew or ought to have
been aware of a real and immediate risk to the life of an identified individual
from the criminal acts of a third party yet failed to take measures within
their scope which, judged reasonably, might have been expected to avoid that
risk.’15

 

Negative obligations refer to when the state
avoids taking certain precautions that then end up infringing human rights. For
example, the negative obligation not to kill, not to record those who have
entered custody etc. Forced disappearances refer to states covering up violence
and killings that they have imposed. Therefore, the right to life still applies
here as if the state were allowed to conceal evidence of those they themselves
have killed, the whole foundation of human rights would be meaningless.

 

In the case of Velasquez Rodriguez v Honduras16 the
court found that Velasquez was kidnapped and was later confirmed that he fit
the description of many others that had been kidnapped and executed around the
same time. After seven years, it was presumed he was dead. ‘”157. The practice of disappearances often involves
secret execution without trial, followed by concealment of the body to
eliminate any material evidence of the crime and to ensure the impunity of
those responsible. This is a flagrant violation of the right to life, ….”‘.17
So here the negative obligation is the absence of a fair trial, there was a
violation of the positive obligation to investigate alleged violations to the
right to life.

 

Another case that shows how forced
disappearances are an act of negative obligations is the case of Timurtas v
Turkey18. The applicants
had left home and not been in contact with him for two years. After supposedly
receiving an unknown phone call saying his son was being detained in custody, a
different family member was told to stop looking for further information. This
was that he was being detained under suspicions he was associated with a
terrorist groups. When investigated, it was found that there was a strong
probability his son had died in unrecorded detention however no hard evidence.
Therefore, it was held by the ECHR that there was a violation of Article 2 of
the convention, right to life, as he was presumed dead however there was no
acknowledgement of him ever being detained. By the state entering a negative
obligation to not record this, it had led to a violation of the right to life.

 

This case is an example of how both positive
and negative obligations can be present in the same case. Here, the negative
obligation is present when the authorities failed to record that the applicant’s
son was being detained and the positive obligation came to light when the death
of his son was eventually investigated.

 

The right to life does not include a right to
die, it is not concerned with the matter of Euthanasia, this was established in
the case of Pretty v United Kingdom19 where
it was found ‘The right
to die is not the antithesis of the right to life but the corollary of it, and
the state has a positive obligation to protect both.’.20 Where euthanasia is
concerned, the state is under duty to recognize that a person may want to die
however, this must be done lawfully, through procedures such as refusing
treatment. Article 2 is concerned with the right to self-determination as a
person should be able to decide if they want to live or not, this is therefore
protected by the article, but the explicit right to die is not covered. There
is no negative obligation concerned here and so when looking at how the
positive and negative obligations relationship here, helps protect
international human rights law, there is not one.

 

The relationship between the two types of
obligations, positive and negative, is an important one. Although it would be
much more ideal negative obligations did not arise, when they do, positive
obligations regularly work to balance these out. By negative obligations
arising states are then obligated to address and fix these through positive
obligations. This relationship is therefore key to ensuring that fundamental,
civil and political rights are protected under international human rights law.

 

To conclude, ensuring the protection of human
rights today is more than essential. Human rights have allowed great movement
in some countries whilst others still lack them. It is important that there
continues to be a relationship between positive negative obligations for as
long as negative obligations are occurring. Through positive obligations,
states are put under a duty which is in everyone’s best interests, without
these duties what many take for granted now, such as the right to life,
prohibition of torture etc. would no longer necessarily need to be followed, it
would cause for an outbreak of chaos and states would have an immense amount of
power. When looking at obligations in reference to the right to life ‘In subsequent years, the Court’s
jurisprudence on the right to life has powerfully demonstrated that this right
is by no means a classic negative right—the duty on the State not to kill’.21

 

Overall, there is a very close relationship
between positive and negative obligations and without them the protection of
fundamental, civil and political rights simply would not exist. Specifically,
when looking at the right to life, the positive obligation the state has to
investigate and the negative obligation states often make to not record certain
individuals being detained in custody are key obligations that complement each
other very well in order to ensuring that the right to life is protected. It is
in the state’s best interest that as long as negative obligations are being
carried out, that the state is also under a positive obligation to try and
maintain the protection of fundamental, civil and political rights under
international human rights law. 

1 Ohchrorg, ‘What
are human rights?’ (Ohchrorg, 01 January 2018)  accessed 3rd January 2018

2 Ohchrorg, ‘International
Human Rights Law’ (Ohchrorg, 01 January 2018)  accessed 29th December 2017

3 Ohchrorg (2)

4 Ohchrorg (2)

5 International Covenant on Civil and Political Rights 1966

6 ‘Human Rights In A Positive State:
Rethinking The Relationship Between Positive And Negative Obligations Under The
European Convention On Human Rights’ (Ghent University Faculty of Law 2016).

7 LCB v United Kingdom (1998) 27
EHRR 212

 

8 Human Rights Act 1998, s.1

9 LCB v United
Kingdom (7)

10 LCB v United
Kingdom (7)

 

11 McCann and
Others v United Kingdom (1995)
Series A no 324

12 McCann and Others v
United Kingdom (11)

13 Alistair R. Mowbray, Development
of Positive Obligations Under the European Convention on Human Rights by The
European Court of Human Rights, (Hart publishing 2005)

14 Osman v
United Kingdom App no 23452/94
ECHR 28th October 1998

 

15 Osman (14)

16 Velasquez Rodriguez, Judgment of July 29,
1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988)

17 Velasquez Rodriguez (16)

18 Timurtas v
Turkey App no 23531/94 ECHR 13th
June 2000

19 Pretty v
United Kingdom App no 2346/02
ECHR 29th April 2002

20 Timurtas v Turkey (18)

21 Alistair R.
Mowbray (13)