The pluses and minuses of obligations

In our regular series, a group of experts from Liberty and the Public Law Project answer your questions

Q What is the difference, if any, between 'positive' and 'negative' obligations under the European Convention on Human Rights?

A Article 2 of the convention states that the law shall protect everyone's right to life and no one shall be deprived of his life intentionally.

Article 3 provides that no one shall be subject to torture, or inhuman or degrading treatment or punishment.

These rights are absolute and no qualification is permitted.

They can be described as imposing 'negative' obligations on the state.

However, on occasion, the European Court of Human Rights has also been asked to draw positive obligations out of articles such as 2, 3 and 8.

This derivation of positive obligations from negative obligations is unique to the jurisprudence of the court.

It has held that the obligation on the high contracting parties under article 1 of the convention to secure to everyone within their jurisdiction the rights and freedoms defined in the convention - taken together with article 3 - requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture, or inhuman and degrading treatment or punishment.

This includes such treatment which is administered by private individuals.

In one of the first cases on this issue (D v UK (1996), 22 EHRR CD 112), a very ill AIDS patient faced removal to St Kitts where medical treatment would not be available.

In this case, the court established that a breach of article 3 would occur where an affirmative act of the state (in this case deportation) is such as to result indirectly in inhuman or degrading consequences for the individual.

The court emphasised that the appropriate test is whether there was a 'real risk' that the applicant's removal would be in breach of article 3.

Furthermore, in A v UK (1999) 27 EHRR 611 - where a child applicant had been caned by his stepfather - the court decided that the law in the UK was inadequate to protect a nine-year-old boy from a severe caning by his mother's partner, and that the UK had therefore violated the boy's right to be free from inhuman and degrading treatment.

In Z and others v United Kingdom (2002) 34 EHRR 97, where four children were severely abused and neglected by their parents, the court held that positive obligations were engaged in that case.

Finally, in Pretty v UK (2002) 35 EHRR 1, a terminally ill woman argued that the state owed her positive obligations under article 3 and that this obliged the government to give an undertaking not to prosecute her husband if he assisted her to commit suicide.

Interestingly, in Pretty, the court concluded that no positive obligation arose under article 3 because 'it would not involve the removal or mitigation of harm by, for instance, preventing any ill-treatment by public bodies or private individuals or providing improved conditions or care.

It would be to require that the state sanction actions intended to terminate life, an obligation that cannot be derived from article 3 of the convention' (paragraph 55).

The court in Pretty was anxious that article 3 should be construed in harmony with article 2.

However, the House of Lords, which considered the case as one under positive obligations, articulated a 'fair balance' test to be applied to determine the limits of those positive obligations under article 3.

As Lord Bingham said: 'It stands to reason that while states may be absolutely forbidden to inflict the proscribed treatment on individuals within their jurisdictions, the steps appropriate or necessary to discharge a positive obligation will be more judgmental, more prone to variation from state to state, more dependent on the opinions or beliefs of the people and less susceptible to any universal injunction' (paragraph 15).

Therefore, greater protection is available for claimant victims if they are in a territory of negative obligations where such a balance will not apply.

However, in the recent case of Q (R on the aplication of) v Secretary of State for the Home Department [2003] EWCA CIV 364 (The Times, 19 March 2003) - which involved the withdrawal of support for certain asylum seekers - the Court of Appeal acknowledged that the boundary between negative obligations and positive obligations is difficult to define and 'not necessarily great...

but the distinction is still real, not least because of its potential consequences for state policy'.

The blurring of this distinction was displayed in Q.

The government argued that to deprive all National Asylum Support Service and safety net assistance to those who do not claim asylum as soon as reasonably practicable under section 55 of the Nationality Immigration and Asylum Act 2002, did not amount to 'treatment' by the state for the purposes of article 3.

However, the court's view was that the state had 'entered into the arena' of treatment by forbidding asylum seekers to work pending the determination of their claims in accordance with international law: 'The imposition by the legislature of a regime which prohibits asylum seekers from working and further prohibit the grant to them, when they are destitute, of support amounts to positive action directed against asylum seekers and not to mere inaction.'

Positive obligations are also capable of arising in the context of article 8.

In Botta v Italy (1998) 26 EHRR 241, the European Court of Human Rights acknowledged that while the essential element of article 8 is to protect the individual against arbitrary interference by public authorities, 'it does not merely compel the state to abstain from such interference; in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life' (paragraph 241).

In Q, the court contemplated a breach of article 8, if the denial of support to an asylum seeker impacts sufficiently on his or her private and family life, which extends to his or her physical and mental integrity and autonomy.

However, the court decided that it was not necessary to consider article 8 at any great length.

The court also referred to arguments presented on these issues as being at 'the cutting edge of human rights jurisprudence'.

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