Details

Autor(en) / Beteiligte

• Keller, Helen
• Walther, Reto

Titel

Evasion of the international law of state responsibility? The ECtHR's jurisprudence on positive and preventive obligations under Article 3

Ist Teil von

• The international journal of human rights, 2020-08, Vol.24 (7), p.957-978

Ort / Verlag

Abingdon: Routledge

Erscheinungsjahr

2020

Quelle

Worldwide Political Science Abstracts

Beschreibungen/Notizen

• While it is evident that the ECtHR's main task is applying the ECHR, it is debatable whether the Court has adequate regard to general international law when considering questions left open by the ECHR. We contribute to this debate from a normative perspective. We discuss the criticism that the Court unduly evades the ARSIWA by applying an expansive positive obligations doctrine. We submit that the Court's propensity to focus on preventive obligations is justified in substance, since it is difficult to imagine how human rights could be effectively protected without such positive obligations in a world where state, third state and private actors mingle. In this sense, the Court's jurisprudence makes valuable contributions to the adaptation of the international legal system to changing societies. Criticism should focus less on the Court's inclination toward positive obligations than on its pertinent methodology, which is at times less than convincing.