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Protection by the Law: The Positive Obligation to Develop a Legal Framework to Adequately Protect ECHR Rights

  • Laurens LavrysenEmail author
Chapter
Part of the Ius Gentium: Comparative Perspectives on Law and Justice book series (IUSGENT, volume 30)

Abstract

The European Court of Human Rights has recognized positive obligations to develop a legal framework to adequately protect the rights guaranteed by the European Convention on Human Rights (‘protection by the law’). This article examines both the substantive and the procedural guarantees that are encompassed by this legal framework. The article examines the rationale behind, as well as the extent of substantive and procedural ‘protection by the law’, thereby identifying the general principles that can be induced from the European Court’s jurisprudence. Where possible, the article compares the European Court’s approach with the one taken by the United States Supreme Court, and with the theoretical account of ‘protection by the law’ as provided by the German Constitutional law theorist Robert Alexy. The article further argues that ‘protection by the law’ could be the key to the proper application of the European Court’s margin of appreciation doctrine. Moreover, ‘protection by the law’ could be seen as a step in the direction of a more ‘constitutionalized’ positive obligations jurisprudence.

Keywords

Effective Protection European Convention Domestic Court Fourteenth Amendment Positive Obligation 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Copyright information

© Springer Science+Business Media Dordrecht 2014

Authors and Affiliations

  1. 1.Human Rights CentreGhent UniversityGhentBelgium

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