In the previous chapter, we have gained insight into the diversity of contexts in which the Court has applied the concept of positive obligations. The discussion provided in the previous chapter is a good starting point to go deeper into the Court's positive obligations case law. In this chapter, I will discuss the question as to how the Court determines the content and scope of positive obligations. In order to gain a better understanding of the Court's application of the concept of positive obligations, it is necessary to discuss a number of important principles and tests cross-cutting the Court's positive obligations case law. In this chapter, the principles of knowledge, proximity and effectiveness will be discussed first. Subsequently, the tests used by the Court in order to determine and delineate the exact content of positive obligations will be discussed, in particular the application of the principles of proportionality and the margin of appreciation, as well as the use of qualifying terms (e.g. the requirement for measures to be “reasonable” or “adequate and sufficient”).

THE KNOWLEDGE CONDITION

Under the ECHR, the mere fact that an interest protected by a human right has been affected – for example, by the actions of a third party – is insufficient to establish State responsibility for a human rights violation. Contrary to such a strict liability standard, it is necessary to establish that the State has acted in violation of a negative or positive obligation imposed under the Convention. As far as positive obligations are concerned, Dröge has considered these as requiring the State to exercise due diligence. She refers in this respect to the broader international law context, citing the Inter-American Court of Human Rights’ judgment in the case of Velasquez Rodriguez, where it was held that: