Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights*

Abstract

This article examines how the common law tort of negligence can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umbrella of positive obligations under the European Convention on Human Rights (ECHR). Both frameworks, the common law and ECHR, aim to delimit the circumstances where responsibility for omissions can be found and have similar conceptual basis of protection in that they protect fundamental interests. However, in the context of the common law certain analytical elements are more thoroughly considered and better articulated. These elements are: the distinction between a duty and a breach of duty; the level of foreseeability of harm; the proximity between the state and the person who has suffered harm; the reasonableness of imposing a duty; the causation between the harm and the alleged omission. Two main arguments emerge from the juxtaposition of the ECHR analysis against the common law. First, by failing to explicitly articulate and distinguish certain analytical elements, the ECHR positive obligation judgments offer little general guidance as to the limits of responsibility. Second, the analytical inquiry applied when adjudicating positive obligations is in tension with the idea of the correlativity between rights and obligations.