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Journal articles on the topic 'Positive Obligations of a State'
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1
Kovalchuk, Vitaliy B., Iryna M. Zharovska, Bohdan I. Gutiv, Bogdana B. Melnychenko, and Iryna O. Panchuk. "Human rights and positive obligations of the state." Journal of the National Academy of Legal Sciences of Ukraine 28, no. 3 (September 17, 2021): 27–35. http://dx.doi.org/10.37635/jnalsu.28(3).2021.27-35.
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At present, both the international and the regional levels of human rights protection lack an express definition of the positive obligation of states to protect human rights. Similarly, the doctrine lacks a unified opinion regarding this concept. For quite a long time, human rights were considered as such that give rise to so-called negative obligations of states to refrain from human rights violations. However, with the development of international human rights law, it is increasingly recognised that human rights also give rise to positive obligations of the state to take active measures to ensure these rights. Such obligations usually derive from international human rights treaties or from the interpretation of international judicial bodies that monitor the implementation of corresponding international treaties. Therefore, it is crucial for the doctrine and practice of international law in the field of human rights protection to analyse the positive obligations of the state, which are consolidated in international treaties and the practice of international judicial bodies. The purpose of this study is to analyse human rights and positive obligations of the state in the context of regional mechanisms for the protection of human rights. Among the general scientific methods, the study used the analysis and synthesis, as well as deduction, induction, prediction, modeling, analogy and other general scientific methods. A thorough study of the positive obligations of the state would be impossible even without the use of special methods of study and cognition, which include comparative legal, historical and legal, technical, and structural-functional methods. In particular, one of the leading research methods was the comparative legal method, which was used to study the practice of regional mechanisms for the protection of human rights. The study provides an overview of the modern interpretation of positive obligations of states. Specifically, this study focuses on the practice of the European, Inter-American and African Human Rights Courts in the context of applying the state's positive obligations
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Kovalchuk, Vitaliy B., Iryna M. Zharovska, Bohdan I. Gutiv, Bogdana B. Melnychenko, and Iryna O. Panchuk. "Human rights and positive obligations of the state." Journal of the National Academy of Legal Sciences of Ukraine 28, no. 3 (September 17, 2021): 27–35. http://dx.doi.org/10.37635/jnalsu.28(3).2021.27-35.
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At present, both the international and the regional levels of human rights protection lack an express definition of the positive obligation of states to protect human rights. Similarly, the doctrine lacks a unified opinion regarding this concept. For quite a long time, human rights were considered as such that give rise to so-called negative obligations of states to refrain from human rights violations. However, with the development of international human rights law, it is increasingly recognised that human rights also give rise to positive obligations of the state to take active measures to ensure these rights. Such obligations usually derive from international human rights treaties or from the interpretation of international judicial bodies that monitor the implementation of corresponding international treaties. Therefore, it is crucial for the doctrine and practice of international law in the field of human rights protection to analyse the positive obligations of the state, which are consolidated in international treaties and the practice of international judicial bodies. The purpose of this study is to analyse human rights and positive obligations of the state in the context of regional mechanisms for the protection of human rights. Among the general scientific methods, the study used the analysis and synthesis, as well as deduction, induction, prediction, modeling, analogy and other general scientific methods. A thorough study of the positive obligations of the state would be impossible even without the use of special methods of study and cognition, which include comparative legal, historical and legal, technical, and structural-functional methods. In particular, one of the leading research methods was the comparative legal method, which was used to study the practice of regional mechanisms for the protection of human rights. The study provides an overview of the modern interpretation of positive obligations of states. Specifically, this study focuses on the practice of the European, Inter-American and African Human Rights Courts in the context of applying the state's positive obligations
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MacKlem, Patrick. "Aboriginal Rights and State Obligations." Alberta Law Review 36, no. 1 (December 1, 1997): 97. http://dx.doi.org/10.29173/alr1020.
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This article investigates the nature and scope of Canada's constitutional obligations towards Aboriginal people. Specifically, the author explores the question of whether or not constitutional recognition of Aboriginal rights imposes a positive constitutional obligation on governments in Canada to provide economic or social benefits to Aboriginal people. He examines approaches which would either confirm or deny the existence of such an obligation and argues for a middle ground between these extremes which would require governments to provide some benefits in certain circumstances. Whether or not a particular social or economic benefit is required by s. 35(1) of the Canadian Constitution would depend on whether or not it is integral to the protection of one of the purposes or interests served by constitutional recognition and affirmation of Aboriginal rights in general. These purposes or interests include respect for Aboriginal identity, territory, and sovereignty. In addition, domestic fiduciary obligations and international human rights documents support the view that federal, provincial, and territorial governments ought to provide certain social and economic benefits to Aboriginals.
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Marshall, Jill. "Positive Obligations and Gender-based Violence: Judicial Developments." International Community Law Review 10, no. 2 (2008): 143–69. http://dx.doi.org/10.1163/187197308x311281.
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AbstractInternational human rights protection traditionally protects individuals from human rights violations committed by their own states. This has been criticised by many, and feminists in particular, as failing those who are violated in the 'private sphere', by actions perpetrated by non-state actors not the state itself. Yet protection from the actions of non-state actors is now increasingly falling within the ambit of international human rights law through positive obligations on states, particularly seen in the concept of due diligence. Developments in this area are analysed in this article with focus on recent decisions of international human rights judicial institutions on cases concerning gender-based violence to show how gender-based violations committed by non-state actors are increasingly being included and interpreted as human rights violations. Whilst not without problems, it is argued that the creativity and potential for protecting all persons from human rights violations is shown, particularly through developments towards a right to personal autonomy, identity and integrity.
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Palmer, Stephanie. "A WRONG TURNING: ARTICLE 3 ECHR AND PROPORTIONALITY." Cambridge Law Journal 65, no. 2 (June 29, 2006): 438–52. http://dx.doi.org/10.1017/s0008197306007185.
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THE right not to be subjected to torture or to inhuman or degrading treatment or punishment is guaranteed in absolute terms in Article 3 of the ECHR. This article imposes on a State both a negative and a positive obligation. In recent months, the House of Lords has considered cases raising both obligations pursuant to Article 3. This paper will examine first the nature of Article 3 and these obligations, second the jurisprudence of the European Court of Human Rights on the issue of State responsibility, and finally the recent decisions of the House of Lords in R. (on the application of Adam, Limbuela and Tesema) v. Secretary of State for the Home Department
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Stoyanova, Vladislava. "Fault, knowledge and risk within the framework of positive obligations under the European Convention on Human Rights." Leiden Journal of International Law 33, no. 3 (April 3, 2020): 601–20. http://dx.doi.org/10.1017/s0922156520000163.
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AbstractThe European Court of Human Rights has consistently reiterated that positive obligations under the European Convention on Human Rights arise when state authorities know or ought to have known about the risk of harm. This article attempts to describe and assess the role of state knowledge in the framework of positive obligations, and to situate the Court’s approach to knowledge about risk within an intelligible framework of analysis. The main argument is that the assessment of state knowledge is imbued with normative considerations. The assessment of whether the state ‘ought to have known’ is intertwined with, first, concerns that positive obligations should not impose unreasonable burden on the state and, second, the establishment of causal links between state omissions and harm.
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RYBERG, JESPER. "Retributivism and Resources." Utilitas 25, no. 1 (March 2013): 66–79. http://dx.doi.org/10.1017/s0953820812000271.
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A traditional overall distinction between the various versions of retributive theories of punishment is that between positive and negative retributivism. This article addresses the question of what positive retributivism – and thus the obligation to punish perpetrators – implies for a society in which the state has many other types of obligation (e.g. obligations to provide its citizens with some degree of health care, education, protection, etc.). Several approaches to this question are considered. It is argued that the resource priority question constitutes a genuine and widely ignored challenge for positive retributivist theories of punishment.
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Henrard, Kristin. "Positive State Obligations Regarding Fundamental Rights and ‘Changing the Hearts and Minds’." Erasmus Law Review 13, no. 3 (November 2020): 1–4. http://dx.doi.org/10.5553/elr.000167.
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Florczak-Wątor, Monika. "The Role of the European Court of Human Rights in Promoting Horizontal Positive Obligations of the State." International and Comparative Law Review 17, no. 2 (December 20, 2017): 39–53. http://dx.doi.org/10.2478/iclr-2018-0014.
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Summary Over the last forty years the concept of the horizontal positive obligations of the State Parties to the European Convention on Human Rights has been developing in a number of cases of the European Court of Human Rights. This concept extends the protection of Convention rights and freedoms to horizontal relations, that is, to the relations between two private parties. However, the Convention on Human Rights can be violated only by the State; the violation by private parties is not possible, as private parties are not parties to the Conventions. Therefore, the only way to challenge a violation of Convention rights committed by private parties is to link this action to an act or omission of the State, and to claim that the State is responsible for it. This, in turn, requires demonstrating that the Convention obliges the State to protect one individual’s Convention rights from violations committed by other individuals. The State has a wide margin of appreciation as to how it discharges the obligation to protect Convention rights against violations by private individuals.
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van Kempen, Piet Hein, and Masha Fedorova. "Regulated Legalization of Cannabis through Positive Human Rights Obligations and Inter se Treaty Modification." International Community Law Review 20, no. 5 (October 10, 2018): 493–526. http://dx.doi.org/10.1163/18719732-12341386.
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Abstract Although the UN narcotic drugs conventions do not allow states parties to legalize cannabis cultivation and trade for recreational use, there are possibilities for states to do so anyhow while staying within the boundaries of international public law. A first option concerns positive human rights obligations, i.e. obligations that require states to take measures in order to offer the best protection of human rights. If a state convincingly argues that with cannabis regulation positive human rights obligations to protect society can be more effectively achieved than under a prohibitive approach, the priority position of human rights obligations over the drugs conventions can justify such regulation. The second option regards the modification of the drugs conventions through an inter se agreement on cannabis regulation between certain of the states parties only. The positive human rights approach and the inter se possibility can strengthen each other and are a supreme combination.
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Chong, Agnes. "State Responsibility for Climate Change Damage and the Evolving Regime of Human Rights." German Yearbook of International Law 63, no. 1 (January 1, 2022): 481–509. http://dx.doi.org/10.3790/gyil.63.1.481.
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Individual States are required to reduce their emissions in order to meet the collective goal of keeping global warming to an increase of no more 2 °C but ideally strive to limit temperature rises to 1.5 °C. States have expressed ambitions for reducing greenhouse gas emissions although largely have yet to translate them into policies. Inadequate climate mitigation policies may fall foul of the obligation to reduce GHG emissions, which is a due diligence obligation. Making any successful determination would depend on the status of the jurisprudence on the formation of a customary obligation on the prevention of the risk of transboundary harm in climate change-related human rights. Progressive norms in human rights jurisprudence inform the content of the due diligence obligation and positive duties thereunder. The implication is that responsibility for inadequate climate mitigation policies, as supported by the recent jurisprudence on the failure of due diligence duties in context of environment-based human rights, may be invoked. It is noted that arguments have been advanced that the obligation to prevent climate change harm presents challenges in establishing the elements necessary for responsibility, particularly in respect to defining the internationally wrongful act and causation. However, developments in international human rights jurisprudence supports positive due diligence obligations in preventing climate risks, raising the theoretical possibilities of an international decision following Urgenda. This article observes the possibility of such a trend within States’ customary obligation to prevent transboundary harm with respect to States’ inadequate climate mitigation policies.
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Drenovak-Ivanović, Mirjana. "Rights of individuals and obligations of the state in protecting air quality." Zbornik radova Pravnog fakulteta Nis 59, no. 89 (2020): 35–50. http://dx.doi.org/10.5937/zrpfn0-28616.
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The paper analyses the status of international agreements in the field of air protection, aiming to interpret the discord between the adopted legal standards and their application. Having in mind the harmonisation process of Serbian law with the EU law, the author further analyzes the obligations of Member States arising from Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe, the developed practice of the CJEU which embodies elements determining the rights of individuals to initiate a procedure for protecting the right to a healthy environment if states do not adopt an air quality action plan, as well as the measures that domestic courts may prescribe to ensure the implementation of decisions establishing the obligation to implement measures for reduction of emissions above the limit values. The concluding sections analyse the degree of harmonisation of our positive law with the adopted standards and the environmental acquis. Having in mind a substantial number of cases related to air protection in the practice of the Serbian Protector of Citizens (Ombudsman), the analysis of the application of recommendations arising from these cases may suggest the degree of harmonisation of commitments and their application, and serve as an instrument for amending positive law.
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de Jong, Dennis. "The Legal Obligations of State and Non-State Actors in Respect of the Protection of Freedom of Thought, Conscience and Religion or Belief." Religion & Human Rights 3, no. 1 (2008): 1–13. http://dx.doi.org/10.1163/187103108x286537.
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AbstractIn this article, the author examines the consequences of the recent recognition of the idea that not only States but also non-State actors can violate human rights. While this development can help in defining the positive obligations of States concerning the protection of freedom of religion or belief, it can also undermine its protection. In particular, the author warns against implications for State interference with what used to be the internal affairs of religious communities. Whereas positive State obligations concerning the acts of non-State actors can be relatively easily established in the case of clear criminal offences, it is much more difficult to establish these in the case of conflicts between various human rights. The author therefore concludes that a new comment by the Human Rights Committee is called for to clarify the implications of these new legal developments.
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Wedeł-Domaradzka, Agnieszka. "Postmortal Issues of Smolensk Tragedy Against the Obligations of Art. 2 of European Convention on Human Rights." Law and Administration in Post-Soviet Europe 7, no. 1 (April 1, 2020): 1–10. http://dx.doi.org/10.2478/lape-2020-0001.
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AbstractThe main aim of the study is to analyze posthumous problems that concern the victims of the Smolensk disaster in the context of positive obligations of the state. The first element of the analysis will concern the standards of dealing with the bodies of disaster victims as soon as they occur. The second aspect will include the obligation to notify of death along with other obligations and information on victims. Then, issues related to the transport of corpses and the opening of coffins will be described, and finally the regulations regarding uninterrupted burial. The analysis of the above issue presented in the work will be carried out taking into account regional human rights protection standards and the ECtHR’s judicial practice. Both soft and hard law standards will be included in the analysis.
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Ngwena, Charles G. "Taking Women's Rights Seriously: Using Human Rights to Require State Implementation of Domestic Abortion Laws in African Countries with Reference to Uganda." Journal of African Law 60, no. 1 (November 16, 2015): 110–40. http://dx.doi.org/10.1017/s002185531500025x.
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AbstractThis article is constructed around the premise that women's rights to safe abortion give rise to obligations that the state has a positive duty to implement. Using Uganda as a case study, it frames failure by a state to implement its abortion laws in ways that render the rights tangible and accessible to women as a violation of human rights. The article develops a normative human rights framework for imposing on a state the obligation to take positive steps to implement abortion laws that the state, itself, has adopted. The framework does not depend on requiring the state first to reform its substantive laws or broaden the grounds for abortion. Rather, it focuses on the implementation of existing domestic laws. The article draws its remedial juridical responses partly from conceptions of women-centred rights to procedural justice, equality and health, and partly from jurisprudence developed in recent years by United Nations treaty-monitoring bodies and the European Court of Human Rights.
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Grans, Lisa. "A Right Not to Be Left Alone – Utilising the Right to Private Life to Prevent Honour-related Violence." Nordic Journal of International Law 85, no. 3 (July 13, 2016): 169–200. http://dx.doi.org/10.1163/15718107-08503002.
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Honour-related violence is increasingly recognised as a human rights problem in a number of countries. However, the scope of State obligations to prevent such acts remains largely unexplored, with the exception of so-called honour killings. This article analyses other forms of honour-related violence from the perspective of the right to private life. It argues that a positive obligation to prevent honour-related violence arises under this right. The extent of the obligation is exemplified by demonstrating to which honour-related acts the right to private life is applicable and which measures authorities can be expected to take in order to prevent these acts.
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Varju, Marton. "Conflict and Complementarity: EU Obligations, Member State Interests and Services of General Interest." European Public Law 23, Issue 2 (April 1, 2017): 347–64. http://dx.doi.org/10.54648/euro2017021.
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This article examines, through the example of the EU’s law and policy on Services on General Interest, the claim that the relationship between Union obligations and Member State interests can be conceived not only in terms of conflict, but also in terms of complementarity. It argues that even though the main purpose of EU law is to confine Member State conduct pursuing local interests needs, the same legal framework also recognizes the interconnectedness of Member State obligations and interests in the Union, which in certain policy areas, where the EU action is delimited by constitutional principles or by the lack of competences, may include an element of complementarity. In the legal and policy domain of Services of General Interest (SGI), the relevant policy documents, Article 14 TFEU and Protocol 26, and Article 106(2) TFEU confirm this essentially positive relationship between Union obligations and Member State interests.
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Güler, Tuğba Sarıkaya. "‘Positive Obligations’ Doctrine of the European Court of Human Rights: Is it Cogent or Obscure?" European Journal of Multidisciplinary Studies 6, no. 1 (June 10, 2017): 358. http://dx.doi.org/10.26417/ejms.v6i1.p358-364.
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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.
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Серьогін, В. "A Review of Monograph by G. Khrystova «Positive Human Rights Obligations of the State: Current Challenges»." Philosophy of Law and General Theory of Law, no. 2 (December 30, 2020): 249–53. http://dx.doi.org/10.21564/2227-7153.2019.2.204800.
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Mullally, Siobhán. "DOMESTIC VIOLENCE ASYLUM CLAIMS AND RECENT DEVELOPMENTS IN INTERNATIONAL HUMAN RIGHTS LAW: A PROGRESS NARRATIVE?" International and Comparative Law Quarterly 60, no. 2 (April 2011): 459–84. http://dx.doi.org/10.1017/s0020589311000042.
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Recent years have witnessed significant developments in international human rights law relating to domestic violence. No longer viewed as a matter ‘essentially within the domestic jurisdiction of the State’, domestic violence now frequently commands the attention of international human rights bodies. The obligations imposed on States include positive obligations of due diligence to prevent, investigate and to punish domestic violence, whenever and wherever it occurs.1 Judicial dialogue across the borders of human rights and refugee law has also expanded access to asylum for women fleeing domestic violence, bringing with it a gradual recognition of the positive obligations that international law now imposes on States. However, as recent cases such as Jessica Gonzalez v the United States2 and Opuz v Turkey3 reveal, significant gaps remain between the rhetoric of human rights law and the reality of everyday enforcement and implementation on the ground. These gaps are most keenly felt by refugee women. While State practice suggests greater gender inclusivity and sensitivity in the practice of refugee law, women fleeing domestic violence continue to face obstacles in making their claims heard.
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Morawska, Elzbieta Hanna. "The complex structure of the absolute prohibition of torture: comments in the light of the regulation of article 3 of the European Convention on human rights." Espaço Jurídico Journal of Law [EJJL] 17, no. 3 (December 20, 2016): 767–78. http://dx.doi.org/10.18593/ejjl.v17i3.12769.
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Abstract: The complexity indicated in the title of this paper does not refer purely to the internal structure of the prohibition of torture, but also to the obligations of States party to the ECHR that are tied to this prohibition. This is because it is not restricted to negative obligations understood as a duty on the part of the State to abstain from certain interferences by the public authorities and which was the fundamental purpose of the ECHR and as such was entered explicit into the normative structure of the freedoms and rights defined in the ECHR , but embraces – firstly – positive obligations which result in a command to take measures for the purpose of ensuring freedom from the said torture for persons under the jurisdiction of States that are party to the ECHR, both in horizontal and vertical relations, and – secondly – a procedural obligations which, year by year, is achieving an ever more autonomous position among the types of commitment resulting from the ECHR for States and the essence of which is the effective clarification of circumstances in the violation of the prohibition of torture.
Keywords: Human Rights. Torture. Ill-treatment. Positive and negative obligations.
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Garciandia, Rosana. "State responsibility and positive obligations in the European Court of Human Rights: The contribution of the ICJ in advancing towards more judicial integration." Leiden Journal of International Law 33, no. 1 (November 18, 2019): 177–87. http://dx.doi.org/10.1017/s0922156519000591.
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AbstractThe European Court of Human Rights (ECtHR) follows its own rules regarding the responsibility of states, although the international law of state responsibility enshrined in the International Law Commission (ILC) Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA) remains, as general international law, relevant to its decisions. However, case law of the ECtHR shows that the Court is departing from certain ARSIWA principles as it adopts a broad interpretation of rights contained in the European Convention on Human Rights (ECHR) giving rise to positive obligations.1Exploring those trends in the state responsibility regime of the ECHR, this article argues that, by clarifying certain ARSIWA provisions, the International Court of Justice (ICJ) can play an important role by contributing to a higher degree of judicial integration on the law of state responsibility. It is desirable that the ICJ takes any upcoming opportunity to provide greater clarity on the challenges and nuances of the applicability of the law of state responsibility, in particular as it relates to positive obligations. That would contribute to a more systematic use of those rules by regional courts such as the ECtHR, and ultimately to guaranteeing a greater protection of human rights.
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Ondrejek, Pavel. "Can positive obligations of States serve as a remedy for human rights violations committed by juristic persons?" Espaço Jurídico Journal of Law [EJJL] 19, no. 1 (April 26, 2018): 45–60. http://dx.doi.org/10.18593/ejjl.v19i1.16511.
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Abstract: Positive obligations of States to protect and implement human rights are considered a part of various effects of human rights in legislations. In this article, it is argued that a crucial problem arises from the inconsistent practice of addressing violations of human rights committed by juristic persons together with a lack of underlying general theory of liability for human rights violations committed by private entities. Without a major change in the legal doctrine and case-law, we will need to remain focused on the role of the State as a guarantor of human rights, rather than on the imposition of human rights obligations on private-law entities. In this article, it is argued that the nature of the relationship between a juristic person and the State is not the only relevant aspect, as we should also examine the activity of the juristic person in question.Keywords: Positive obligations of States. Juristic persons. State-juristic person nexus. Fundamental rights. Horizontal effect.Resumo: Obrigações estatais positivas de proteger e de implementar direitos humanos são parte dos vários efeitos dos direitos humanos nas legislações nacionais. Neste artigo, argumenta-se que um problema crucial decorre da prática de abordar violações de direitos humanos cometidas por pessoas jurídicas sem uma teoria geral da responsabilidade por violações de direitos humanos cometidas por entidades privadas. Sem uma mudança importante na doutrina e na jurisprudência será preciso permanecer olhando apenas para o papel do Estado como garantidor de direitos humanos. Neste artigo argumenta-se que a natureza da relação entre uma pessoa jurídica e o Estado não é o único aspecto relevante. É preciso examinar também a atividade da pessoa jurídica em questão.Palavras-chave: Obrigações positivas dos Estados. Pessoas jurídicas.
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Černic, Jernej Letnar. "Corporate Human Rights Obligations under Socio-economic Rights." Philosophy of law and general theory of law, no. 1 (December 21, 2021): 64–102. http://dx.doi.org/10.21564/2707-7039.1.247453.
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In the chapter it is examined obligations of business in the field of socio-economic rightsThe author proceeds from the understanding of the importance of socio-economic rights to ensurethe livelihood of people and the creation of human opportunities, as well as their fundamental naturein terms of enjoying civil and political rights. The author is convinced that not only states, but alsocorporations, have certain obligations in the field of socio-economic rights. Because socioeconomicrights are linked to financial resources, corporations can make a significant contribution to securingthem in case of state fragility.The author analyzes international documents, compares national legal systems, as well as othersources (decisions of treaty bodies on human rights), and he concludes that corporate obligationsgain their legitimacy due to the horizontal application of national and international human rights law.It is noted that the UN Guiding Principles on Business and Human Rights, the OECD Guidelines forTransnational Enterprises, the UN Global Compact, the ILO Tripartite Declaration play a significantrole in promoting corporate human rights obligations in the field of socio-economic rights.The author also analyzes the significance of voluntary commitments of both individual corporationsand individual sectors that are generally the part of corporate policy and suggests their questionablelegal nature (lex imperfecta), as they do not provide sanctions for their violation.Analyzing the features of corporate obligations under socio-economic rights, the author takes asa basis the negative and positive dichotomy of human rights, as well as the approach embodied ininternational human rights law on three types of human rights obligations – to respect, protect, ensure.The author concludes that within each of the types of socio-economic rights obligations, corporationshave both preventive (negative and positive) and some corrective (negative and positive) obligations,especially where they control and/or or influence or in proximity of their operations.
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Tryfonidou, Alina. "Positive State Obligations under European Law: A Tool for Achieving Substantive Equality for Sexual Minorities in Europe." Erasmus Law Review 13, no. 3 (November 2020): 98–112. http://dx.doi.org/10.5553/elr.000149.
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Meijer, Sonja. "Rehabilitation as a Positive Obligation." European Journal of Crime, Criminal Law and Criminal Justice 25, no. 2 (March 15, 2017): 145–62. http://dx.doi.org/10.1163/15718174-25022110.
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Although the emphasis in European penal policy now lies on the rehabilitative aim of imprisonment, the concept of rehabilitation remains vague and is being interpreted differently in different European countries. This paper looks at rehabilitation from a legal perspective and aims to clarify the current meaning and content of the principle of rehabilitation. It does this by focusing on the questions of whether and on what grounds rehabilitation can be considered a positive obligation on the part of the State and, if so, what the consequences are of recognising rehabilitation as a positive obligation.
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Kjeldgaard-Pedersen, Astrid. "A Ghost in the Ivory Tower: Positivism and International Legal Regulation of Armed Opposition Groups." Journal of International Humanitarian Legal Studies 7, no. 1 (March 14, 2016): 32–62. http://dx.doi.org/10.1163/18781527-00701004.
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Why do scholars, who generally acknowledge the international legal personality of non-State entities, still question the bindingness of the law of non-international armed conflict on insurgents? This article examines the relationship between the two dominant positivist conceptions of international legal personality and the rights and obligations of insurgents as a matter of positive international law. First, the article illustrates that the evolution of the law of non-international armed conflict corroborates Hans Kelsen’s idea that the international legal personality of an entity, be it a State, an armed opposition group, or an individual, is solely contingent upon interpretation of international norms. Second, it shows that the traditional perception of States as exclusive subjects of international law – though never reflected in positive norms governing non-international armed conflict – continues to influence the current debate on the theoretical underpinnings for binding insurgents. The orthodox ‘States-only’ conception of international legal personality is seemingly so ingrained in the minds of contemporary international lawyers that they inadvertently rely on it when faced with international legal regulation of non-State entities. Finally, the article addresses the implications of these findings for the overall question of international legal obligations of non-State actors.
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Kalshoven, Frits. "The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit." Yearbook of International Humanitarian Law 2 (December 1999): 3–61. http://dx.doi.org/10.1017/s1389135900000362.
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The four Geneva Conventions of 1949 for the protection of war victims open with an unusual provision: it is the undertaking of the contracting states ‘to respect and to ensure respect for [the Conventions] in all circumstances’. Why reaffirm that contracting states are bound to ‘respect’ their treaty obligations? Does ‘all circumstances’ add anything special to this fundamental rule of the law of treaties? And what about ‘ensure respect’: should that not be regarded as implicit in ‘respect’, in the sense of a positive counterpart to the negative duty not to violate the terms of the Conventions?I readily admit that common Article 1 was not the first provision of the Conventions to capture my attention: there was, after all, so much to discover in these impressive structures that Article 1 could easily be passed over as an innocuous sort of opening phrase. Two things have changed this. One was the insistence of the International Committee of the Red Cross (ICRC) that a State Party to the Conventions is not only itself bound to comply with its obligations under these instruments but is under a legal obligation to make sure that other States Parties do likewise. The more this thesis of the ICRC was forced upon us, the less likely it seemed to me that this could indeed be an international legal obligation upon contracting states.
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Sushkov, Sergey. "Georgia v. Russia (II) and “a context of chaos”: active hostilities and jurisdiction of the state under the European Convention on Human Rights." Meždunarodnoe pravosudie 11, no. 2 (2021): 40–53. http://dx.doi.org/10.21128/2226-2059-2021-2-40-53.
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In Georgia v. Russia (II), the European Court of Human Rights used the concept of a “context of chaos” to substantiate the lack of state jurisdiction during the active phase of hostilities. This concept is applicable in the establishment of extraterritorial jurisdiction based both on effective control over an area and on the state agent authority and control over individuals. The Court also developed its position on the importance of the “element of proximity” in establishing jurisdiction over the victims of shelling. At the same time, the ECtHR left open the question of the relationship between the concepts of “element of proximity” and “context of chaos” when establishing jurisdiction based on the state agent authority and control over individuals. Meanwhile, active hostilities and “context of chaos” do not affect the existence of State jurisdiction over prisoners of war and detained civilians. The Court’s finding on the lack of jurisdiction during the active phase of hostilities creates a vacuum in the system of human rights protection, which can be explained by the Court’s reasonable unwillingness to apply international humanitarian law or to use it for the interpretation of the European Convention on Human Rights. In addition, the ECtHR revised its approach regarding the role of occupation as a factor in establishing jurisdiction over a territory. In accordance with the logic of the ECtHR, the presence of troops on the territory of another state automatically entails the establishment of extraterritorial jurisdiction. Finally, the Court made it clear for the first time that the model of the violation of positive obligations in an extraterritorial context allows the Court to avoid considering the issue of imputing to the state actions that violated human rights. However, in Georgia v. Russia (II), the Court did not conduct a proper analysis of the violation of positive obligations by Russia. The ECtHR found a violation of positive obligations without any reference to the facts of the case. In this paper, the author presents a critical view of the validity of the Court’s conclusions.
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Savage-Oyekunle, Oluremi A. "Appraisal of Nigeria’s Obligation on Adolescents’ Access to Sexual and Reproductive Health Care." European Scientific Journal, ESJ 14, no. 6 (February 28, 2018): 466. http://dx.doi.org/10.19044/esj.2018.v14n6p466.
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The positive obligations on states parties to ensure covenant rights will only be fully discharged if individuals are protected by the state, not just against violations of covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of covenant rights…. (Paragraph 8 General Comment 31 Human Rights Committee) This article explores the responsibility of the Nigerian state towards ensuring female adolescents’ access to sexual and reproductive health (SRH) care information and services especially contraceptive information and services. It thereafter, considers the stance of the treaty monitoring bodies to state parties’ obligations on the right to access SRH care information and services. The article concludes by declaring the need for judicial activism and stricter monitoring of the government’s activities in other to ensure that adolescents enjoy actual access to SRH care information and services.
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Henrard, Kristin. "Case Law of the European Court on Human Rights Concerning Ethnic, Religious and Linguistic Minorities during 2014: About Differential Margins of Appreciation and the Role of the Prohibition of Discrimination." European Yearbook of Minority Issues Online 13, no. 1 (May 22, 2016): 248–82. http://dx.doi.org/10.1163/22116117_01301013.
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The Court’s case law regarding ethnic, religious and linguistic minorities during 2014 reveals that in several respects it leaves (de facto) less margin of appreciation to states, focusing on the effective protection of minorities’ fundamental rights. In other respects, the Court seemingly prefers to not take a clear stance, and rather grants states a wide margin of appreciation. Overall, the Court is adamant about state obligations to tolerate ethnic and religious minorities and to protect them against private violence. Positive state obligations to accommodate minorities and their special needs and special “way of life” appear still too controversial and devoid of European consensus for the Court to take a stance. Nevertheless, the developments pertaining to the Court’s scrutiny of models of state–church relations demonstrate that the “lack of European consensus” is subject to a relative and evolutive assessment.
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Urbaitė, Lina. "Judicial Activism in the Approach of the European Court of Human Rights to Positive Obligations of the State." Baltic Yearbook of International Law Online 11, no. 1 (2011): 211–38. http://dx.doi.org/10.1163/22115897-90000073.
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Hins, Wouter, and Dirk Voorhoof. "Access to State-Held Information as a Fundamental Right under the European Convention on Human Rights." European Constitutional Law Review 3, no. 1 (February 2007): 114–26. http://dx.doi.org/10.1017/s1574019607001149.
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Access to state-held information essential in a democratic society – Traditional reluctance of the European Court of Human Rights to apply Article 10 European Convention on Human Rights in access to information cases – Positive obligations and new perspectives: initiatives within the Council of Europe – Parallel with the Inter-American Court of Human Rights – Sdruženi Jihočeské Matky decision of the European Court: the beginning of a new era?
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Nałęcz, Andrzej. "‘A More Human Approach’. Human Rights, Obligations of the State and Network Neutrality in Europe." Yearbook of Antitrust and Regulatory Studies 12, no. 19 (2019): 29–51. http://dx.doi.org/10.7172/1689-9024.yars.2019.12.19.2.
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The article explores the concept of the positive and negative obligations of the state in securing human rights, recognized in human rights literature, and in the judgments of the European Court of Human Rights. The concept is then applied to show the importance of securing freedom of expression in regulating Internet access services and enforcing pertinent regulations in EU Member States. The author is of the opinion that economic arguments should not overshadow the need to secure the freedom of expression of the end-users of Internet access services.
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Leijten, Ingrid. "Human rights v. Insufficient climate action: The Urgenda case." Netherlands Quarterly of Human Rights 37, no. 2 (April 24, 2019): 112–18. http://dx.doi.org/10.1177/0924051919844375.
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Climate change is a human rights issue, but what exactly can courts require States to do in this regard? This contribution discusses the Dutch Urgenda case, in which the Court of Appeals recently found a violation of Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention on Human Rights and ordered the State to reduce greenhouse gas emissions by 25% by 2020. Looking at the case law of the European Court of Human Rights on environmental issues, as well as the nature of positive obligations, it appears that Urgenda involves a more abstract situation and a more precise positive obligation than is usually the case in human rights adjudication. Because ex post facto complaints are no solution, and in light of the growing number of Urgenda-like cases pending before (international) courts, efforts need to be made to ensure that human rights `fit' climate change cases and courts can provide effective protection in this regard.
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Slingenberg, Lieneke, and Louise Bonneau. "(In)formal Migrant Settlements and Right to Respect for a Home." European Journal of Migration and Law 19, no. 4 (December 11, 2017): 335–69. http://dx.doi.org/10.1163/15718166-12340013.
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Abstract Across European cities, migrants without access to state facilities, resort to living in ‘makeshift camps’ or squats. These settlements are usually evacuated and demolished by state authorities. Instead of discussing the state’s positive obligation to provide decent housing, this article focusses solely on the state’s negative obligations under the right to respect for a home as laid down in Article 8 of the European Convention of Human Rights (echr). Drawing upon the cases of Calais and Amsterdam, this article scrutinizes domestic case law about evictions from (in)formal migrant settlements and compares that to case law of the European Court of Human Rights (ECtHR). We argue that the ECtHR case law provides a relevant framework that should be used to evaluate the legitimacy of evictions and destructions of (in)formal migrants’ settlements. Despite the fact that applying this framework would not entail a complete ban on evictions, it would provide some welcome (procedural and substantive) protection for migrants.
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Popovych, T. P. "THE HUMAN RIGHT TO THE PROTECTION OF PERSONAL DATA ON THE INTERNET: THEORETICAL AND LEGAL ASPECTS." Analytical and Comparative Jurisprudence, no. 2 (July 6, 2021): 51–54. http://dx.doi.org/10.24144/2788-6018.2021.02.9.
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The article is devoted to the analysis of theoretical and legal aspects of the human right to the protection of personal data on the Internet. The author believes that at the present stage the field of personal data protection on the Internet is becoming especially important, linking it with the universal importance of communication that occurs within the Internet, as well as the threat of unauthorized dissemination of information through it. The right to the protection of personal data is considered as one of the forms of realization of the human right to the respect for his private, family life, in the context of his inviolability on the Internet. Scientific intelligence begins with a review of information protection models that have emerged in the world. Yes, we are talking about the American, European and mixed models. However, the article provides an overview of the acts adopted by the relevant European institutions in this area.
In addition, the article examines the experience of some foreign countries in ensuring the human right to the protection of personal data on the Internet, in particular Brazil, France and the Republic of Belarus. The author notes that the protection of personal data involves a number of positive and negative obligations of the state and individuals. Negative obligations are aimed at prohibiting the processing of personal data without the consent of the person to whom the specific information relates. The positive obligations of public organizations and individuals (organizations) are to comply with the established legal regime of personal data processing, including the use of appropriate technical means. That is, the author emphasizes that the legal obligations in the context of ensuring the right to protection of personal data on the Internet are imposed not only on the state, but also on Internet service providers, owners of online services and websites, etc., given the possibility that they have access to personal information.
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Keller, Helen, and Reto Walther. "Evasion of the international law of state responsibility? The ECtHR’s jurisprudence on positive and preventive obligations under Article 3." International Journal of Human Rights 24, no. 7 (April 17, 2019): 957–78. http://dx.doi.org/10.1080/13642987.2019.1600508.
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Stoyanova, Vladislava. "Causation between State Omission and Harm within the Framework of Positive Obligations under the European Convention on Human Rights." Human Rights Law Review 18, no. 2 (May 25, 2018): 309–46. http://dx.doi.org/10.1093/hrlr/ngy004.
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Katrougalos, George S. "European ‘Social States’ and the USA." European Constitutional Law Review 4, no. 2 (June 2008): 225–50. http://dx.doi.org/10.1017/s1574019608002253.
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Constitutional protection of social rights – Differences between European and American legal cultures – National solidarity and market relationships – New Deal and the creation of the American Welfare State – Functions of the American State – The reflection of profound political, moral and societal choices – The concept of Sozialstaat – Positive obligations and negative freedoms – European Social Model – Social services and competition rules – The concept of solidarity and the deregulatory effect of EU law – EU citizenship – Locating of social rights in market integration
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Vorobyova, S. V., and E. Yu Kuzmenko. "Regulation of Alimony Obligations in the Russian Federation and Foreign Countries." Pravo istoriya i sovremennost, no. 3(16) (2021): 082–91. http://dx.doi.org/10.17277/pravo.2021.03.pp.082-091.
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Modern legal relations in the field of regulation of alimony obligations have become relevant. These legal relations arise on the basis of certain legal facts. This article discusses the issues of alimony obligations in the Russian Federation and a number of foreign countries. There is a certain need to analyze the family legislation of States where there is a positive experience in the regulation of alimony obligations that meets the requirements of the parties to these legal relations. Examining the international aspects of this institution, it can be noted that the mechanism for collecting alimony is similar to that used in Russia. Nevertheless, states have differences in the amount of alimony obligations established, the procedure for paying alimony, the availability of the ability of individuals to independently and mutually resolve this issue, and the age at which the child is provided with material support differs. However, there is no doubt that the family is the most important social institution of any state and different countries use different approaches to maintain it, which try to maintain a balance between the interests of the child and the interests of the parent. In particular, for such support, the institution of alimony obligations has been created and is being developed, which provides property guarantees to those in need.
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Carmona Cuenca, Encarna. "Derechos sociales de prestación y obligaciones positivas del Estado en la jurisprudencia del Tribunal Europeo de Derechos Humanos // Social Rights of assistance and positive obligations of the State in the case-law of the European Court of Human Rights." Revista de Derecho Político 1, no. 100 (December 20, 2017): 1209. http://dx.doi.org/10.5944/rdp.100.2017.20731.
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Resumen:El Convenio Europeo de Derechos Humanos no reconoce expresamente los derechos sociales de prestación (a excepción del derecho a la educación). A pesar de ello, el Tribunal de Estrasburgo ha realizado una interpretación extensiva de los derechos civiles y políticos reconocidos para incluir, de diversas formas, la protección de aquellos derechos. Una de las técnicas utilizadas ha sido la doctrina de las obligaciones positivas del Estado. Aunque el Tribunal ha aplicado esta doctrina, fundamentalmente, a los derechos civiles y políticos, podemos encontrar algunas resoluciones en las que establece determinadas obligaciones positivas estatales para proteger derechos como la protección de la salud, la vivienda, la protección social o la protección de las personas con discapacidad. En general, se trata de reconocimientos generales y poco concretos pero, en algunos casos, ha detallado cuáles son estas obligaciones. Esto lo ha hecho, en primer lugar, en casos en que se habían producido daños cuya responsabilidad era directa o indirectamente del Estado. En segundo lugar, cuando se trataba de personas que se encontraban bajo la tutela del Estado, como las personas detenidas o internas en prisiones. Y, en tercer lugar, cuando los afectados eran personas especialmente vulnerables (discapacitados o pertenecientes a la minoría gitana). Aunque se trata de una interpretación incipiente y poco desarrollada, muestra un camino en el que se debería profundizar en el futuro. Es generalmente admitido que son los Estados quienes deben tener la iniciativa en el diseño y establecimiento de los derechos sociales de prestación pero, en caso de conductas y omisiones estatales manifiestamente contrarias a los estándares internacionales, el Tribunal Europeo debería obligar a los Estados mediante sus sentencias a dictar una legislación o establecer políticas que hagan efectivos estos derechos.El artículo consta de una introducción, cuatro epígrafes de contenido y una conclusión final. En el segundo epígrafe se aborda la cuestión de la problemática justiciabilidad de los derechos sociales de prestación. En el tercero se hace referencia a la doctrina de las obligaciones positivas del Estado en la jurisprudencia del TEDH. En el cuarto se apuntan las principales técnicas que ha utilizado el TEDH para proteger los derechos sociales de prestación y, en particular, la extensión del contenido de algunos derechos civiles y políticos. En el quinto epígrafe se analiza cómo se ha utilizado la técnica de las obligacionespositivas del Estado en la protección de los derechos sociales de prestación y, en concreto, del derecho a la protección de la salud y del derecho a la vivienda.Summary:1. Introduction. 2. The social rights of assistance and its problematic justiciability. 3. The positive obligations of the state in the case lawof the ECtHR. 4. The protection techniques of the social rights of assistance in the case law of the ECtHR. 4.1. General approach. 4.2. Application of the prohibition of discrimination of article 14 ECtHR to certain social benefits. 4.3. Extension of the content of several rights recognized in the Convention. 5. In particular: the protection of social rights of assistance through the doctrine of the positive obligations of the state. 5.1. The right to health protection. 5.2. Theright to housing. 6. By way of conclusion.Abstract:The European Convention on Human Rights does not expressly recognize any social rights of assistance (except the right to education). In spite of this, the Strasbourg Court has made a broad interpretation of recognized civil and political rights to include, in different ways, the protection of those rights. One of the techniques used by the Court has been the doctrine of the State's positive obligations under the ECHR. Although the Court has essentially applied this doctrine to the civil and political rights, we can find some resolutions in which it establishes certain positive state obligations to protect rights such as protection of health, housing, social benefits or protection of people with disabilities. Generally, these are general and not very specific recognitions, but in some cases, they have detailed what these obligations are.Firstly, this has been done in cases where there was damage which was directly or indirectly the responsibility of the State. Secondly, regarding people who were under the protection of the State, such as persons detained or interned in prisons. And, thirdly, when those affected were particularly vulnerable (disabled or belonging to the Roma minority). Although it is an incipient and underdeveloped interpretation, it shows a way in which should be further deepened. It is generally accepted that it is the States that must take the initiative in designing and establishing social rights of assistance but, inthe case of state conduct and omissions that are manifestly contrary to international standards, the European Court should oblige States with their judgements to enact legislation or develop policies to give effect to these rights.The article consists of an introduction, four content epigraphs and a final conclusion. The second section deals with the question of the problematic justiciability of social rights of assistance. The third refers to the doctrine of the positive obligations of the State in the Case Law of the ECtHR. The fourth section outlines the main techniques used by the ECtHR to protect the social rights of assistance and, in particular, expanding the scope of some civil and political rights. The fifth section analyzes the use of the technique of positive obligationsof the State in the protection of social rights of assistance and, in particular, the right to protection of health and the right to housing.
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Aguettant, Felix A. "A Turn of the Tide in the Extraterritorial Application of Child Rights: On the French Approach towards ISIS’ Child Returnees." Journal of Politics and Law 14, no. 3 (March 20, 2021): 51. http://dx.doi.org/10.5539/jpl.v14n3p51.
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There are hundreds of children of French jihadists detained in northeast Syrian camps, being in direct danger of irreparable damage to their physical and psychological development. France has been denying the existence of any competence in Syria that could impose international obligations regarding these children. However, in November 2020, the Committee on the Rights of the Child decided in an individual communication procedure that the French State has jurisdiction over these children, marking a significant development in the extraterritorial application of human rights that is not immune to severe criticism. The Committee established that competence is found entirely upon a factual assessment and used the nationality of the children as a central criterion, posing arbitrariness concerns. The decision is nevertheless a decisive basis to uphold the positive obligation to protect child nationals, making the refusal of the State to systematically repatriate them less and less defensible. Finally, an understanding of security concerns was found to be crucial in a policy change. Any future decisions should therefore strike a better balance between public security and the rights of the child.
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Nikolic-Ristanovic, Vesna, and Mirjana Dokmanovic. "International standards and domestic violence." Temida 8, no. 2 (2005): 11–20. http://dx.doi.org/10.2298/tem0502011n.
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The majority states in the world, as well as Serbia and Montenegro, took over the obligations from international law documents with regards to prevention, protection and prosecution of domestic violence. Over the last several years, in Serbia and Montenegro, there have been some positive steps regarding more decisive reaction on domestic violence, in the first place thanks to NGOs advocacy. However, the state involvement and contribution is still symbolic in comparison with obligations that international documents require from it. Having that in mind, authors try to explain the role and significance of international law for improving social responses on family violence. They also give systematic review of the most important demands that international law set up before the state. The main aim of the text is the analysis of the role that international law has in making state strategies in the field of domestic violence, as well as systematic review of existing international standards in this area which have to be taken into consideration in legislative, institutionalized and other reforms which are on going in Serbia and Montenegro.
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CONFORTI, BENEDETTO. "REFLECTIONS ON STATE RESPONSIBILITY FOR THE BREACH OF POSITIVE OBLIGATIONS: THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS." Italian Yearbook of International Law Online 13, no. 1 (2003): xix—10. http://dx.doi.org/10.1163/221161303x00010.
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Berkes, Antal. "Human Rights Obligations of the Territorial State in the Cyberspace of Areas Outside Its Effective Control." Israel Law Review 52, no. 2 (June 7, 2019): 197–231. http://dx.doi.org/10.1017/s0021223719000050.
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The absence of control of a territorial state over part of its physical territory is closely associated with online human rights violations, on the one hand, and the state's restricted (but not necessarily absent) control over the cyberspace, on the other. Notwithstanding the lack of its effective territorial control, the territorial state continues to be entitled to exercise its sovereignty over both territory and cyberspace. The consequence of sovereignty in international human rights law is the territorial state's presumed jurisdiction over its entire national territory. The article claims that the territorial state, while lacking the effective means to control its cyberspace fully as it does in the government-controlled areas, has continuing jurisdiction, and consequently obligations, to protect human rights online from wrongful acts that originate, occur or have effect in the area outside its effective control. Treaty monitoring bodies have recommended various positive measures that any territorial state is required to take while seeking to restore its ‘internet sovereignty’ in the separatist region, depending on the means in its power that are feasible in the particular situation.
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Омелёхина, Наталья, and Natalya Omelekhina. "Financial-Legal Forms of Positive Bind." Journal of Russian Law 2, no. 9 (September 23, 2014): 26–35. http://dx.doi.org/10.12737/5498.
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Considering method of financial law in the view of whole legal ways and instruments, marks the relation’s specific of forming, distribution and using of public funds, proving the key role of positive liability in financial law regulation. Taking the above-mentioned into account, the author considers that there is the existence of positive liabilities both monetary, and non-monetary character in the finance sphere. This fact enables to conclude about a backbone role of monetary positive liabilities in the financial law and about its division into two groups — monetary duties and monetary obligations. The position of the author on a number of the theoretical questions connected with application of positive holdings liable in financial and legal regulation is stated.
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Rivers, Julian. "The Question of Freedom of Religion or Belief and Defamation." Religion & Human Rights 2, no. 3 (2007): 113–18. http://dx.doi.org/10.1163/187103107x252364.
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AbstractThis note criticises the growing use of the term, 'defamation of religions' in human rights contexts on account of its quasi-legal character, its failure to identify the relevant positive state obligations under human rights instruments, and its tendency to eliminate disagreement about religious matters. Instead, it is suggested that the correct starting point for the engagement of human rights with religion is by way of freedom of religion or belief.
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Marshall, Pablo. "State of the Reform of Legal Capacity in Chile." International Journal of Mental Health and Capacity Law, no. 27 (December 23, 2021): 60–69. http://dx.doi.org/10.19164/ijmhcl.27.1198.
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The Chilean legal regulation of disability has advanced towards an adequate legal framework for the progressive development of state practices respectful of the rights of people with disabilities. The ratification of the CRPD (2008) has been followed by an increasing amount of legislation directed to the inclusion of people with disabilities. The most important of this new disability regulation is the Law 20422 [on equal opportunities and social inclusion of people with disability]. Chile, in this way, can be regarded as a slow but persistent student of the teachings of the CRPD. Despite these positive developments, certain obligations under the CRPD are still pending, especially clear in the legal regulation affecting mental disability. The controversies surrounding legal capacity and mental health law are probably the most important issues surrounding the hesitation to carry out a reform.
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Allen, Neil. "First Do No Harm. Second Save Life?" International Journal of Mental Health and Capacity Law, no. 19 (September 8, 2014): 180. http://dx.doi.org/10.19164/ijmhcl.v0i19.258.
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<p>Some 50,352 people killed themselves in England and Wales between 1997 and 2006. Reducing this human toll of inner turmoil has long been a key national priority for health services. But protecting us from ourselves is no easy task when the apparent benefits of escaping life outweigh the agony of having to endure it. Often it is too late for someone’s suicidal ideation to come to the attention of the authorities. Sometimes, however, the risk to life is more readily apparent: on average, 1300 patients already known to mental health services commit suicide every year.</p><p>The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 is slowly realigning the moral and legal obligations of public bodies to protect life, with Article 2 imposing three duties upon the state. Firstly, a negative duty to refrain from taking life, save in prescribed exceptional circumstances. Secondly, a procedural obligation to investigate deaths for which it might bear some responsibility. Finally, there is a positive obligation to take steps to protect our lives which is the exclusive focus of this paper.</p>