THE DEVELOPMENT OF STATE’S POSITIVE OBLIGATIONS
UNDER ARTICLES 2 AND 3
OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Positive obligations always oblige to act, to take actions. They are
opposed to negative obligations, which concern abstaining from taking
actions in order to evade violation of one’s right or freedom.
Originally, State’s positive obligations were linked to the protection
of the rights of second generation – economic, social and cultural rights1.
States were obliged to take actions to guarantee the enjoyment of these
rights. To guarantee, for example the right to work.
First generation rights – civil and political rights (such as right to
life, freedom of torture, right to privacy) were to be guaranteed by
fulfilling states negative obligations. The state was protecting these rights
by its non-interference.
That was in the very beginning of development of human rights. It
became obvious that even first generation rights require taking actions in
order to make them “practical and effective”.
The “discovery” of positive obligations in first generation of human
rights was made by European Court of Human Rights (ECHR) very early.
According to F.Sudre, the Court has referred to positive obligations for
the first time in belgian linguistic case of 23 july 19682. Later, the Court
referred to positive obligations in the case of X. and Y. v. The Netherlands
of 26 march 1985.
* Uniwersytet Warmisko-MazurskiW Olsztynie.
1 Rights such as right to work or the right to just conditions of work.
2 F. SUDRE, Les „obligations positives” dans la jurisprudence européenne des droits
de l’homme, P. MAHONEY, F. MATSCHER, H. PETZOLD, L. WILDHABER (eds.), Protection
des droits de l’homme: la perspective européenne. Mélanges a la mémoire de R. Ryssdal,
Köln-Berlin-Bonn-München 2000, p. 1359; also P. VAN DIJK, “Positive obligations”
Implied in the European Convention on human rights: Are the states still the “Masters”
of the Convention?, M. CASTERMANS-HOLLEMAN, F. VAN HOOF, J. SMITH (eds.), The Role
of Nation-State in the 21st Century, Human Rights, International Organisations and
Foreign Policy. Essays in Honour of Peter Baehr, The Hague-Boston-London 1998, s.18-
19; also C. MIK, Teoria obowizków pozytywnych Pastw-Stron traktatów w dziedzinie
praw człowieka na przykładzie Europejskiej Konwencji Praw Człowieka, J. BIAŁOCERKIEWICZ,
M. BALCERZAK (eds.), Ksiga Pamitkowa Profesora Tadeusza Jasudowicza, Toru
2004, p. 260.