In this chapter, I introduce the methodological choices adopted in this book and present the results of the content analysis carried out on all Article 3 decisions issued between 1967 and 2016. Instead of studying norms as unitary phenomena, I disaggregate them to do this analysis. I focus on each and every obligation that a norm contains and trace the norm’s transformation by taking these separate obligations as a reference. The chapter demonstrates the distinct obligations that the norm against torture and inhuman or degrading treatment entailed during the period under study. It then explains why looking at these obligations separately helps us better understand the pace and the magnitude of change. The chapter also introduces some preliminary analysis probing the dominant tendencies of the European Court’s different incarnations, which range from audacity, selective audacity, selective forbearance, and forbearance. This chapter thus presents a bird’s-eye-view analysis, providing an overview before turning to more in-depth analyses of different change episodes in the following chapters.

The fundamental rights laid down in the Convention can generally be classified as civil and political rights and liberties. These oblige the States to abstain from undue interference with the Convention rights and freedoms and therefore are called ‘negative obligations’. At the same time, the Court has recognised that States have so-called ‘positive’ obligations to provide effective protection of the Convention rights. The Court’s recognition and development of positive obligations has significantly contributed to the overall strength and scope of the protection offered by the Convention. This chapter focuses on the ways in which the Court generally defines positive obligations, i.e. applying the fair balance test, the reasonable knowledge and means test, an effectiveness-based test, and a test based on the Court’s own precedents. The Chapter further discusses different types of positive obligations - in particular substantive, preventive and procedural positive obligations - and the relation between positive and negative obligations. In addition, the incorporation of social and economic rights in the Convention through positive obligations is addressed.

This chapter lays down the foundations for the argument that questions of (non-)performance raised by the practical phenomenon of sharing international obligations can be tackled by a further categorization and systematization of international obligations, since different types of shared obligations can have different legal implications. It starts by introducing the distinction between indivisible and divisible shared obligations, after which the analysis turns to the issue of how to ascertain the nature of shared obligations, as it will not always be apparent at first glance whether a particular shared obligation is to be qualified as indivisible or divisible. It will be discussed how the distinction between positive and negative obligations as well as the distinction between obligations of conduct and result can facilitate the categorization of a particular shared obligation as either divisible or indivisible. The chapter ends with some reflections on the performance of shared obligations, highlighting how both indivisible and divisible shared obligations can have relevant implications for what is expected of duty-bearers (though in different ways), necessitating a more collective approach to performance.

Aftercorporate human rights obligations were justified in general terms in the previous chapter, this chapter defines their nature and extent further. The question is approached, first, by distinguishing different obligation types in a general manner, briefly defining negative and positive obligations, passive and active obligations, general and special obligations, and perfect and imperfect obligations. The chapter then zooms in on human rights obligations in particular. It discusses in detail the tripartite duty structure correlating with human rights and how the three types of human rights obligations – the obligation to respect, protect, and fulfil human rights – may be interpreted to apply to corporations.

International human rights law imposes obligations on States that have jurisdiction over facts occurring in the ‘grey zone’, namely, the territorial State and the outside State. The principal question which the chapter answers is dual: what the scope of the obligations binding the concerned States is in respect of the ‘grey zone’ and what the limits are of these obligations, especially compared to the obligations binding them in a ‘normal’ situation where the State has effective control over its entire territory. The chapter claims that the degree of the State’s effectiveness and the lawful limitations the State introduces can decrease the modalities of the expected protection but cannot restrict the heart of the obligations under human rights conventions.