Why We Need More Positive Obligations in International Law
Positive Obligations are an essential component of effective human rights protection in any international treaty. They have been vital in the establishment and enforcement of the Geneva Conventions (GC), the European Court on Human Rights (ECHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and many other international agreements, including several disagreement treaties. The intricacies of positive obligations can be redefined on a case-by-case basis, allowing them to specifically address the needs of any given issue. However, they always include the requirement that states are party to an agreement act and take necessary measures to protect the rights of certain individuals or states. They act complementary to negative obligations, which are passive and prevent state interference in the exercise of human rights. Negative Obligations are widely used and implicit within international treaties; however, they do little to actively prevent human rights violations.
Positive obligations are far more effective and necessary. By imploring states to take action, positive obligations ensure that the rights stated in any given treaty are protected. This is essential in developing international agreements and ensuring the security of those impacted.
Wide-scale international treaties meant to ensure the protection of human rights are some of the most important agreements for the use of positive obligations. The inclusion of positive obligations in the treaties that this article will discuss is crucial to their efficacy. Common Article I of the Third Geneva Convention (GCIII) addresses the responsibility of states to ensure respect for the Convention under all circumstances. This ensures High Contracting Parties are obliged by all components of the GCIII, including the positive obligations. In the interpretation by the IRCR, common Article I includes the positive obligation that States prevent and end IHL violations. This is an extremely significant component of the Geneva Conventions and thus the basis of international law.
Furthermore, The European Convention on Human Rights (ECHR) has employed positive obligations within many of its provisions in order to ensure that they are properly fulfilled. Article II of the Convention, the Right to Life, is a principal example of how positive obligations have been used within the Convention. In a landmark case, the Court ruled that
“positive obligations under Article 2 must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake.”
This greatly expands the scope in which positive obligations apply, maximising their efficacy. It is also a relevant example of the power of case law. While positive obligations are often included within the development of international treaties, they may also be developed through case law. The Committee on Economic, Social and Cultural Rights' (CESCR) concept of multi-layered State obligations includes the obligations to respect, protect, and fulfill rights. The obligation to respect human rights is a negative one, meaning it requires the role of the State to be passive in that it does not interfere with the rights of its citizens. On the other hand, the other two State obligations are fundamental examples of positive obligations.
Although disarmament is not the only specialised field in international law where positive obligations are vital, their use in international disarmament law exemplifies the discrepancy in humanitarian benefits between treaties with positive obligations and those without. Three of the only humanitarian disarmament treaties include the 1997 Mine Ban Treaty, the 2008 Convention on Cluster Munitions and the Treaty on the Prohibition of Nuclear Weapons (TPNW). These three humanitarian security-driven treaties are dependent on positive obligations, most importantly, those requiring victim assistance and environmental remediation. Moving forward, all disarmament treaties must include positive obligations in order to ensure that not only is state security protected but the civilians that are commonly impacted are protected as well.
Why we Need Them
Positive obligations must be more regularly included and abided by under international law. Non-interference does not adequately affect civilians, specifically those who have been historically disenfranchised under international law and those who are particularly vulnerable to the horrors the international human rights violations can cause. They fulfil the necessary measures that negative obligations cannot and they encourage the prevention of future violations. In a time in which an unprecedented number of issues threaten the security of all humans, positive obligations are a necessary step that must be taken by international bodies in order to ensure humanitarian security.