Accession of the EU to the ECHR is again a realistic prospect after the 46 + 1 Group reached a deal in March 2023. This chapter answers the question as to what the potential impact of EU accession to the ECHR is from the perspective of fundamental rights accountability and effective judicial protection vis-à-vis the EU. This chapter discusses the added value of accession showing how it fills two protection gaps while also contributing to coherence and legal certainty. It argues that actual substantive effects depend on the way in which the ECtHR will apply its case law vis-à-vis the EU, such as the margin of appreciation, positive obligations or locus standi, and access to justice. The second part of the chapter focuses on the procedural practicalities, including admissibility, the co-respondent mechanism, and the prior involvement procedure. The third part analyses how accession could remedy the gaps in judicial protection in the Common Foreign and Security Policy.

Implying rights and obligations that are not explicitly set forth in a treaty is not a technique of treaty interpretation explicitly recognized in the Vienna Convention. But the practice of treaty interpretation supplies numerous examples of interpretively implied consequences of express treaty commitments. This chapter focuses on some of the best-known examples of treaty interpretation based on necessary implications ranging from the theory of implied powers of international organizations to the doctrine of positive obligations in international human rights law. Building on philosopher Robert Brandom’s theory of inferentialism, it argues that what is presented as necessary implications in treaty interpretation are discursively articulated inferential consequences of formal commitments undertaken under the treaty.

The author examines the place of consent in treaty interpretation at the time of the marginalization of the role of the intention of the parties. Whether the characterization of international law as a legal system grounded in State consent has ever been empirically true is, as he argues, open to discussion. For him, the law of treaties, however, is commonly seen as ‘a bastion of consensualism’. This sense of confidence has, however, never sat easily with treaty interpretation. The author claims that, despite the lip service sometimes paid to the fiction of the common intention of the parties, the official doctrine of treaty interpretation rests on the primacy of the terms of the treaty.

This chapter explains why the norm against torture and inhuman and degrading treatment dramatically expanded in the period after 1998. Relying on the theoretical framework, it assesses the conditions that made the Court audacious enough to effectuate these resource-intensive positive obligations. First, as a full-time court with compulsory jurisdiction, the new Court came to enjoy a wide discretionary space. This attribute conferred it with judicial courage to issue audacious rulings across the board and recognize a range of important positive obligations under Article 3. Second, there was a growing need for positive obligations in European societies, especially in the aftermath of the Eastward enlargement. Positive obligations were necessary for both the Western and Eastern European countries alike. They served a supplementary role for the protection of rights in Western Europe and played a crucial role in inducting Eastern Europe into a rule of law tradition. Last but not least, creating positive obligations was less likely to raise eyebrows because they were already established in the jurisprudence of other courts and were actively promoted by civil society groups.

In this chapter, I explore how the new Court, immediately after its creation in 1998, enforced increasingly lower thresholds of severity to find a violation under the prohibition of torture and introduced several key positive obligations. I provide a detailed assessment of how, with a few audacious rulings, the new Court reversed the compromises made by the old Court, especially regarding the member states’ national security concerns. Different from the old Court, the new Court could act audaciously across the board. The most visible implication of this was the fact that the new Court accepted almost all the novel claims brought before it—even those concerning resource-intensive positive obligations and the violations perpetrated by private actors. As epitomes of sudden change, these positive obligations assumed a taken-for-granted status not long after their initial acknowledgment. Having described the achievements of the new Court, I also discuss the areas where progress was slower. In particular, I take a look at the Court’s treatment of claims arising from systemic racist policies.

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.

This chapter considers the question of whether corporations have positive obligations in relation to fundamental rights and, if so, how to determine the substantive content of those obligations. The chapter examines justifications for the ‘negative obligations model’ which asserts that non-state actors only have negative obligations – to avoid harming – fundamental rights. I show why the negative/positive obligation distinction is not adequate to distinguish the obligations of the state from those of non-state actors and also provide positive justifications for why non-state actors and, particularly, corporations should have such obligations. The multi-factoral model, suitably modified, I argue complimented by a seven-step test – instead of proportionality – provides a structured analytical process for legally determining the substantive content of the positive obligations of corporations. Lastly, I consider the legal instantiation of positive obligations through the courts in South Africa and the legislature in India. The multi-factoral model, I suggest, could be helpful in systematising and guiding these developments.

This chapter discusses the development of negative and positive human rights obligations under international human rights law (IHRL) and their applicability to hostage-taking. It is shown that the development of IHRL can be fundamental for the protection of the human rights of hostages, filling in the gaps left by jurisdiction in international law and state responsibility, as states have a duty to protect the human rights of hostages by adopting all possible measures to prevent hostage-taking; taking action to end the violations that hostages suffer at the hands of their abductors; investigating a hostage incident and rescue operation; and compensating the victims. Chapter 5 also discusses the jurisdictional limitations of the human rights framework which sit uncomfortably in the transboundary nature of hostage-taking. The second part of the chapter therefore reassesses the human rights obligations of states which operate beyond their borders in order to release hostages.

This chapter debates the relevance of human rights law to climate law. No doubt the impacts of climate change hinder the enjoyment of many types of human right. On this ground, Nicola Pain makes the case that climate change can be viewed as a human rights problem, entailing that states must mitigate climate change in order to comply with their positive obligations to protect human rights. Fanny Thornton explores the weaknesses in this position. She counters that viewing climate change through a human-rights lens is misconceived and leads to absurd results, not least because there is no standard by which to assess the adequacy of governmental mitigation action.