After a history of domestic violence against his wife and her mother, condoned by the authorities, an abusive husband shoots and kills the mother. Persons living in a residential area are confronted with excessive road-traffic noise making their houses virtually uninhabitable as a result of heavy traffic taking an alternative route to avoid a toll road. A health insurance fund rejects the request of a boy suffering from a neuromuscular disease to be provided with a robotic arm, which would have enabled him to perform many physical acts unassisted and would have made him less dependent on assistance from third persons. These are just three examples of real life situations which have come up before the European Court of Human Rights (the Court) in which the applicants claim that their human rights have been violated, not because of the actions of the State but because of the failure of the State to act in a certain way: to take action to protect mother and wife against domestic violence, to take measures to reduce road-traffic noise to an acceptable level or to provide the boy with that robotic arm.

The Court is able to examine such complaints since it has accepted that the European Convention on Human Rights (ECHR) not only gives rise to so-called negative obligations requiring States to refrain from directly committing human rights violations, but also so-called positive obligations to take steps to secure individuals the effective enjoyment of their human rights. While the Court has developed a large body of case law in the field of positive obligations, the concept and its application remain contested and there is a need for more scholarly work in this field. The present study takes up this challenge.

This introductory chapter will first discuss the aims of the study. Secondly, it will give a general introduction to the development of the concept of positive obligations by the Court and discuss the main problems identified by the literature with respect to this concept. Thirdly, a working definition of the concept of positive obligations will be proposed, which makes it possible to distinguish the concept from some related notions. Fourthly, it will give an overview of the state of the art of the literature in this field and it will explain how the scope of this study relates to this broader literature.