It is hard to believe that there were once no such thingas human rights, today many take them for granted in countries where the law iswell 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 toour human rights without discrimination.’1 When a state enters, andbecomes a member of an international treaty, they become under an obligation toabide by human rights laws. States assume obligations and duties to firstlyrespect (‘States must refrain from interfering with or curtailing the enjoymentof human rights’)2,protect (‘protect individuals and groups against human rights abuses’.)3and fulfil human rights (‘take positive actionto facilitate the enjoyment of basic human rights’)4. Civil and politicalrights are covered by the International Covenant on Civil and Political Rights(ICCPR), it recognizes that ‘the ideal of free human beings enjoying civiland political freedom and freedom from fear and want can only be achieved ifconditions are created whereby everyone may enjoy his civil and politicalrights, as well as his economic, social and cultural rights”.
5 TheUniversal Declaration of Human Rights (UDHR) was the first legal document thatset out what fundamental human rights were to be protected universally. Fundamentalrights are rights given to us because we are simply human. Positive obligations mean that a state isobligated and has a positive duty to implement a certain right whereas negativeobligations refer to how a state should avoid human rights violations. ‘The rights guaranteed in the EuropeanConvention on Human Rights (ECHR) not only place negative obligations on theState to refrain from actions that interfere with human rights, but alsopositive ones that require the State to take action in order to ensure thoserights.’6 The two terms arevery similar however, positive obligations look at what a state can actively doto ensure human rights are being implemented whereas negative obligations dothe opposite, they refer to how a state can aim to avoid a violation in thefirst place.
The relationship between the two mean that states can protect thefundamental, civil and political rights under international human rights law asmuch as possible. The European Court of Human Rights (ECHR) first recognized theexistence of positive obligations after a case, concerning the Right to Life,called LCB v UK7. Mostly always first to be covered in any major international andregional human rights instruments is the right to life. This is not just theright to survival or the right to say alive nor is it a right to be killed bythe state or anyone else. This right also includes certain positive stateobligations in order to protect life.
In addition to this, it covers issuesregarding the beginning and ending of life clearing up issues of abortion andeuthanasia. Under the Human Rights Act 1998 Schedule 1 Part 1 Article 2 theright to life is defined as 1 Everyone’s right to life shall beprotected by law. No one shall be deprived of his life intentionally save inthe execution of a sentence of a court following his conviction of a crime forwhich this penalty is provided by law.2 Deprivation of life shall not beregarded as inflicted in contravention of this Article when it results from theuse of force which is no more than absolutely necessary:(a)in defence of any person from unlawful violence;(b) in order toeffect a lawful arrest or to prevent the escape of a person lawfully detained;(c) in actionlawfully taken for the purpose of quelling a riot or insurrection.8 This is how the law is set out inArticle 2 of the ECHR however it is worded differently in all majorinternational and regional human rights instruments. The ECHR first recognized that positiveobligations existed after the case LCB v UK9. In thiscase, the applicant was claiming that the state (UK) had violated her right tolife under article 2 of the ECHR as she had been diagnosed with Leukemia thatshe believed could have been mitigated if the right had been imposed. Sheclaimed 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.
Theapplicant believed that if the state had informed her and her family of thehealth risks involved then she would have seeked medical advice earlier and soher illness would have been mitigated. She claimed that the state had a positiveobligation to inform her family about the health risks of her father’sinvolvement consequently, breaching this positive obligation, breaches hertight to life. ‘Held, Article 2 of the Convention imposes aduty upon the State and the issue therefore becomes whether the State had doneall it could in response to such duty.’10 The ECHR found that there was no violation asthe applicant had not provided substantial evidence to prove her illness couldhave been mitigated. States are obligated to follow laws and are undera positive obligation to safeguard the lives of those within theirjurisdiction. Through different cases the right to life has become more andmore established over the years. One of the key cases regarding this humanright is McCann and Others v United Kingdom11 a claimwas made by a representative of the deceased; the SAS had travelled to Gibraltarto arrest suspected members of the IRA as it had come to light a car bomb wasto be detonated.
Rules had been laid down regarding when shootings wereallowed, when suspects supposedly reached for the detonator, the SAS shot andkilled the three suspected terrorists. The claimants claimed that there hadbeen a breach of Article 2 of the ECHR. When no violation was found, theclaimants appealed their way to the European Court of Human rights. Here, itwas found there was a breach and concluded that ‘the use of force must be no more than ‘absolutelynecessary’ and ‘strictly proportionate’ to achieving a legitimate aim.’12 In addition to this, itis not enough for the person who is using lethal force, the fact that he/shemay believe that they should use lethal force is, simply, not enough. This case set the standardfor what ‘absolutely necessary’ means in the context of the ECHR. ‘A related positive obligation is the duty onmember states to provide individuals with suitable measures of protectionagainst immediate threats to their lives from third parties.
’13 Whenlooking at what obligations the state are under to ensure the right to life isnot breached, positive obligations can only arise when authorities knew orought to have known of the existence of real and immediate risk of the life ofindividuals. This was established in the case of Osman v UK14. Inthis case Mr. Osman was killed by a teacher whom had become obsessed with hisson as he taught at the same school. The family and school had told the policeabout the stalking, the police arrived at the defendant’s house with theintention of arresting him however found he was absent. The defendant laterappeared at Mr. Osman’s home and shot him dead and seriously wounded his son.
The applicants complained that the authorities had failed to protect theirlives, a breach of article 2 of the ECHR. This case allowed the ECHR to come upwith a test for when the state is under a positive obligation or not. ‘The test as to whether a violation hadoccurred in such situations was whether the authorities knew or ought to havebeen aware of a real and immediate risk to the life of an identified individualfrom the criminal acts of a third party yet failed to take measures withintheir scope which, judged reasonably, might have been expected to avoid thatrisk.’15 Negative obligations refer to when the stateavoids taking certain precautions that then end up infringing human rights. Forexample, the negative obligation not to kill, not to record those who haveentered custody etc.
Forced disappearances refer to states covering up violenceand killings that they have imposed. Therefore, the right to life still applieshere as if the state were allowed to conceal evidence of those they themselveshave killed, the whole foundation of human rights would be meaningless. In the case of Velasquez Rodriguez v Honduras16 thecourt found that Velasquez was kidnapped and was later confirmed that he fitthe description of many others that had been kidnapped and executed around thesame time. After seven years, it was presumed he was dead. ‘”157. The practice of disappearances often involvessecret execution without trial, followed by concealment of the body toeliminate any material evidence of the crime and to ensure the impunity ofthose responsible. This is a flagrant violation of the right to life, ….”‘.
17So here the negative obligation is the absence of a fair trial, there was aviolation of the positive obligation to investigate alleged violations to theright to life. Another case that shows how forceddisappearances are an act of negative obligations is the case of Timurtas vTurkey18. The applicantshad left home and not been in contact with him for two years. After supposedlyreceiving an unknown phone call saying his son was being detained in custody, adifferent family member was told to stop looking for further information. Thiswas that he was being detained under suspicions he was associated with aterrorist groups. When investigated, it was found that there was a strongprobability 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 ofthe convention, right to life, as he was presumed dead however there was noacknowledgement of him ever being detained. By the state entering a negativeobligation to not record this, it had led to a violation of the right to life. This case is an example of how both positiveand negative obligations can be present in the same case.
Here, the negativeobligation is present when the authorities failed to record that the applicant’sson was being detained and the positive obligation came to light when the deathof his son was eventually investigated. The right to life does not include a right todie, it is not concerned with the matter of Euthanasia, this was established inthe case of Pretty v United Kingdom19 whereit was found ‘The rightto die is not the antithesis of the right to life but the corollary of it, andthe state has a positive obligation to protect both.’.20 Where euthanasia isconcerned, the state is under duty to recognize that a person may want to diehowever, this must be done lawfully, through procedures such as refusingtreatment. Article 2 is concerned with the right to self-determination as aperson should be able to decide if they want to live or not, this is thereforeprotected by the article, but the explicit right to die is not covered.
Thereis no negative obligation concerned here and so when looking at how thepositive and negative obligations relationship here, helps protectinternational human rights law, there is not one. The relationship between the two types ofobligations, positive and negative, is an important one. Although it would bemuch more ideal negative obligations did not arise, when they do, positiveobligations regularly work to balance these out. By negative obligationsarising states are then obligated to address and fix these through positiveobligations.
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 humanrights today is more than essential. Human rights have allowed great movementin some countries whilst others still lack them. It is important that therecontinues to be a relationship between positive negative obligations for aslong as negative obligations are occurring. Through positive obligations,states are put under a duty which is in everyone’s best interests, withoutthese 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, itwould cause for an outbreak of chaos and states would have an immense amount ofpower. When looking at obligations in reference to the right to life ‘In subsequent years, the Court’sjurisprudence on the right to life has powerfully demonstrated that this rightis by no means a classic negative right—the duty on the State not to kill’.21 Overall, there is a very close relationshipbetween positive and negative obligations and without them the protection offundamental, civil and political rights simply would not exist.
Specifically,when looking at the right to life, the positive obligation the state has toinvestigate and the negative obligation states often make to not record certainindividuals being detained in custody are key obligations that complement eachother very well in order to ensuring that the right to life is protected. It isin the state’s best interest that as long as negative obligations are beingcarried out, that the state is also under a positive obligation to try andmaintain the protection of fundamental, civil and political rights underinternational human rights law. 1 Ohchrorg, ‘Whatare human rights?’ (Ohchrorg, 01 January 2018) aspx> accessed 29th December 20173 Ohchrorg (2)4 Ohchrorg (2)5 International Covenant on Civil and Political Rights 19666 ‘Human Rights In A Positive State:Rethinking The Relationship Between Positive And Negative Obligations Under TheEuropean Convention On Human Rights’ (Ghent University Faculty of Law 2016).7 LCB v United Kingdom (1998) 27EHRR 212 8 Human Rights Act 1998, s.19 LCB v UnitedKingdom (7)10 LCB v UnitedKingdom (7) 11 McCann andOthers v United Kingdom (1995)Series A no 32412 McCann and Others vUnited Kingdom (11)13 Alistair R. Mowbray, Developmentof Positive Obligations Under the European Convention on Human Rights by TheEuropean Court of Human Rights, (Hart publishing 2005)14 Osman vUnited Kingdom App no 23452/94ECHR 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 vTurkey App no 23531/94 ECHR 13thJune 200019 Pretty vUnited Kingdom App no 2346/02ECHR 29th April 200220 Timurtas v Turkey (18)21 Alistair R.Mowbray (13)
aspx> accessed 29th December 20173 Ohchrorg (2)4 Ohchrorg (2)5 International Covenant on Civil and Political Rights 19666 ‘Human Rights In A Positive State:Rethinking The Relationship Between Positive And Negative Obligations Under TheEuropean Convention On Human Rights’ (Ghent University Faculty of Law 2016).7 LCB v United Kingdom (1998) 27EHRR 212 8 Human Rights Act 1998, s.19 LCB v UnitedKingdom (7)10 LCB v UnitedKingdom (7) 11 McCann andOthers v United Kingdom (1995)Series A no 32412 McCann and Others vUnited Kingdom (11)13 Alistair R. Mowbray, Developmentof Positive Obligations Under the European Convention on Human Rights by TheEuropean Court of Human Rights, (Hart publishing 2005)14 Osman vUnited Kingdom App no 23452/94ECHR 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 vTurkey App no 23531/94 ECHR 13thJune 200019 Pretty vUnited Kingdom App no 2346/02ECHR 29th April 200220 Timurtas v Turkey (18)21 Alistair R.Mowbray (13)