Positive Obligations under the European Convention on Human Rights
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2011, 691-718
Positive obligations have a growing importance in the jurisdiction of the European Court of Human Rights (ECtHR). This article analyzes the relation between positive obligations and proportionality with the help of Alexy’s principles theory. Applying the proportionality test to both negative and positive obligations may undermine any margin of appreciation of the Member States. This gives rise to the problem of overdetermination. An account of different types of the margin, however, helps to understand the precise scope of the margin in the field of positive obligations. The Hatton Case is used as a seminal example to illustrate these issues.