‘Positive Obligations’ Doctrine of the European Court of Human Rights: Is it Cogent or Obscure?

Abstract

Over the last half century, positive obligations jurisprudence of the European Court of Human Rights (ECtHR) has been playing a pivotal role in sculpting European Human Rights system. There is, however, some potential for disagreement on whether it is an effective and well-established doctrine or not. On the one hand, the activeness of the ECtHR brings about some practical benefits in order to keep out with new societal context, but on the other, unique tensions (e.g., underestimation of state’s margin of discretion, increasing burden on state, inconsistencies and uncertainties of verdicts) in the implementation of that doctrine give rise to anxieties about its cogency. Since this issue is quite multifaceted, this paper aims to elucidate in what ways positive obligations doctrine is justified and to what extent it has been deliberate while deriving positive obligations regarding Article 2. At the end, it asserts that without positive obligations doctrine, the Convention might be outmoded and ineffective. However, despite some immature aspects of it, the Court at least strived to dynamically interpret the Convention thanks to this doctrine. For this reason, it is claimed that considering existing and possible benefits of that doctrine, common legitimization for the judicial creativity of the ECtHR might be assured in foreseeable future.