Causation between state omission and harm within the framework of positive obligations under the European convention on Human Rights

Abstract

The issue of causation has been surprisingly overlooked in the area of international human rights law. The objective of this article is to fill this gap by investigating how the ECtHR finds causal connections between harm and state omissions within the framework of positive obligations. By engaging with causation, this article seeks to partially address the widely voiced concerns about the indeterminacy that clouds positive obligations in the case law. Four main arguments are articulated. First, assessments whether the state knew, or ought to have known, about the (risk of) harm, whether demanding state action is reasonable and whether harm is caused by state failures, are merged and affect each other in the enquiry as to whether the state has failed to fulfill its positive obligations. Secondly, the level of state control structures lines of causation. Thirdly, since the question as to how much control the state should have could imply normative judgments in which the Court might not want to see itself implicated, and since empirical and epistemological uncertainly might hamper assessments of causation, the Court has recourse to techniques to avoid direct resolution of these normative issues and uncertainties. Two such techniques are discussed: domestic legality and national procedural guarantees. Finally, even in cases where omissions might be causative to harm, additional considerations might militate against finding the state responsible under the ECHR: reasonableness, no immediacy of the harm and no systemic failures.