Is the European recognition of positive obligations in human rights law superior to the view taken by the United States Supreme Court?
In the Liberal tradition, democracies emphasise the political and civil rights of their citizenry: autonomy, the rule of law, and both positive and negative liberties of the individual are some of many examples. But what of the negative and positive obligations regarding the state, in as much as human rights are concerned? While the democratic values of Europe and America are largely built upon the same ideals, it is the means by which their different legal systems ascertain government duty wherein a fundamental divergence of responsibility occurs. Principally, the distinction centres on the reach of law, and to what extent conflicts can be ameliorated through courts.
This essay will discuss the descriptive implications of the largely normative claim that the acknowledgement of positive obligations on the state, ie those acknowledged by the European Court of Human Rights, is one aspect in which the European understanding of rights is superior to that demonstrated by the Supreme Court of the United States. To accomplish this analysis, a framework of terminologies will be established, followed by brief historical context juxtaposing the development of European and American case law. An alternative judgement of Deshaney v Winebago County will then be explored before concluding with a general remark on sociopolitical norms.
Definition of Terms
Individual agency remains at the forefront of our definitions of liberty. Positive liberty, on the one hand, signals the capacity to meet one’s own potential in absence of sociological constraints or obstacles. By contrast, negative liberty is often considered freedom from the interference of others. These two considerations form the crux upon which the concepts of positive and negative obligations of the state rest. Negative obligations are defined as ‘duties of restraint, preventing the state from interfering with individual freedom’ (Fredman 2006: 1). Positive obligations however ‘in practice require national authorities to take the necessary measures to safeguard a right or, more precisely […] to adopt reasonable and suitable measures to protect the rights of the individual’ (Akandji-Kombe 2007: 7). Negative obligations therefore demand a limitation of or minimal interference from government, whereas positive obligations require the state to act, either by protecting or providing some good, service, or behaviour. A violation of such positive obligation is therefore nonfeasance.
It is this latter definition which now requires acute attention for the purview of this essay, but our framework is incomplete without addressing the notion of ‘superiority.’ The difficulty lies in the subjectivity of the word. While law may not inherently function as an amelioration of social injustices prima facie, ‘superior’ is to be understood as a process best suited to offer remedies for the inequalities and harm found in an increasingly complex society. In the centuries following the ratification of the American Constitution and the decades since the European Convention on Human Rights became law, the general public of both polities have come to expect and rely upon particular norms and responsibilities of their governments. Of course, no judicial interpretation can be completely without contention. But the European reliance on positive obligations is closer to the apex of a just legal system than that of its American cousin.
Historical and Social Context
We must first underscore the historical context from which the American Constitution was born. Deontological conceptions of American rights are first expressed in the Declaration of Independence, which predates the Constitution by several years. In the preamble, the Founders asserted that the current form of Government – the British Monarchy – had become destructive to the ends of unalienable rights. That which follows is a list of malfeasances committed by King George III which include, in modern parlance: the obstruction of justice, maintaining standing militaries in times of peace, sending officers to harass the general public, and intervening with trade (US Declaration of Independence: 1776). From the perspective of the early Colonists, the majority of these grievances stemmed from government abuse of power. As such, the limitation of state authority – or interference in an individuals’ obtainment of liberties both positive and negative – was an integral element in the development of American legal doctrine later enshrined in the Constitution.
The United States does enjoy a relatively immalleable Constitution, and one which is unique for being the oldest charter of supreme law still in use today. These factors however may illuminate a particular inadequacy, especially in light of historical and social paradigm shifts which undoubtedly altered our understandings of the rights of individuals, as well as the political systems which maintain democracy. The Convention for the Protection of Human Rights and Fundamental Freedoms however was conceived in the mid-20th century.
In the aftermath of World War II, the United Nations initiated a sea change in the global context of rights inherently entitled to all: the Universal Declaration of Human Rights. Noting that egregious human rights violations occurred systemically during the global conflict, the democratic governments of Europe responded to twin contemporary concerns: preventing another Holocaust, and protecting the rights of individuals against the tyranny of communism spreading in the east.
In the Continental context, governments were afforded a recent opportunity to recognise the shifting notions of political and social responsibilities in a new Europe. Limitation of state power alone as a means to preserve fundamental rights was regarded as inefficient. If freedom as a fundamental right is to be considered the active involvement of an individual in the shaping of their destiny and maintenance of their dignity, the role of government has thus been transformed to include the obligation to strengthen and protect those aforementioned rights (Fredman 2006: 16).
European states have established legal orders which ‘guarantee the protection of fundamental human rights and freedoms’ as a necessity to satisfy their understandings of positive obligations (Komárek 2005: 27). Contrasted with jurisprudence in the United States, the present European state is one which is note merely an agent which orchestrates legal functions on behalf of its constituency, or principal. Instead, the government and judicial order it adheres to actively provide and protect, in many ways, opportunities for Europeans to maximise their autonomy, dignity, and other fundamental rights.
Of course, this is not to say that the Bill of Rights fails to grant Americans certain privileges afforded by government authorities. For example, Amendment VI is practically identical to its younger Convention counterpart, §1 Article 6, in which any person convicted of a crime is entitled to a fair, speedy and public trial. Furthermore, just as there lacks an explicit protection or even mention of privacy in the Constitution, other guarantees within the Bill of Rights and precedence established has over time created ‘penumbras’ which establish the right. As a general principle, the Supreme Court will acknowledge that an expectation of individual privacy is a fundamental aspect of personal liberty.
However, let us now consider the case of Deshaney v. Winnebago County Department(1989). At the hands of his own father, Joshua Deshaney suffered extreme physical abuse which ultimately led to brain damage severe enough to have him rendered into State Care. Before his physical integrity was destroyed to the ultimate point of mental retardation, the Winnebago County Department of Social Services became aware of the situation. While the department took several steps to protect the child, including sending a social worker to visit the family home, no intervention was made to the point of effective protection.
The mother subsequently sued the state, alleging that Joshua’s substantive rights under the Due Process Clause found in Amendment XIV had been violated, as the state neglected to protect the boy’s liberty. In so doing, the question brought before the Supreme Court was whether or not the government’s failure to protect one individual from private violence constitutes a direct violation of the XIV Amendment.
The Supreme Court, in a decision split 6 to 3, maintained that there had been no violation of Joshua’s human right to physical integrity. The opinion of the Court upheld that ‘[The Due Process Clause] is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security [and] its language cannot fairly be read to impose an affirmative obligation on the State’ (Deshaney v. Winebago County). The actions of the state, or lack thereof in this instance, in no way prove to be a violation as the Constitution only protects direct harm caused by the state. Only if the department or an agent thereof had taken custody of the child and then deprived him of protection would there have been a violation of Joshua’s liberty.
For the sake of comparison, what decision might the Court in Strasbourg have reached? It is not a stretch to imagine that European judges would have quickly sided with the dissent. As Justice Blackmun famously wrote, ‘Poor Joshua’ was in this case a victim not only of his ‘irresponsible, bullying’ father, but also ‘abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing.’ Blackmun insisted that the child had been ‘denied by this Court […] constitutional protection that 42 U.S.C. 1983 is meant to provide.’
Positive obligations in Europe indicate the ‘very marked trend towards extending the scope of the Convention to private relationships between individuals’ (Akandji-Kombe 2007: 15). The violation of Joshua’s human rights by his father constituted a failure in the legal order, primarily because of absence of state action. Recognising that the state had indeed been made aware of the domestic violence, it stands to reason that government interference would have clearly passed the tripartite test established by the ECHR. Removing the child from his home would firstly serve a legitimate goal of protecting physical integrity, secondly address the pressing social need to redress physical harm, and thirdly, satisfy the requirements of proportionality.
Normative Assumptions and Concluding Remarks
Americans as a people encourage the proclivity to fiercely guard individual freedom. ‘For us,’ writes American author and European policy expert Jeremy Rifkin, ‘freedom has meant the ability to amass personal wealth and become independent […] preferring to limit government involvement in the community to ensure greater personal control over one’s property’ (Rifkin 2005: 33). This is echoed throughout the cultural and legal understanding of state responsibilities, wherein a Lockean perspective of negative liberty, including the axiom ‘the government that governs least, governs best’ permeates. Limitation of state action vis-à-vis the protection of property rights has always dominated American legal doctrine.
This is not the case in contemporary Europe. The development of the welfare state assumes that a majority of social and economic problems once attributed to the individual are indeed policy issues, best addressed through social democracy and communitarianist ideals (Fredman 2006: 6). The true superiority of the European understanding of positive obligations therefore lies in its ability to not only reclaim the normative identity of democratic legal systems, but to strategically reshape the discourse of human rights. Adhering to Rawlsian principles of liberty and distributive justice, the ECHR structure actively aims to provide citizens with the means by which to achieve their basic human rights in a way the American understanding cannot.
Akandji-Kombe, Jean-François. (2007) ‘Positive obligations under the European Convention on Human Rights.’ Volume: 44, Issue: 7, Council of Europe.
Convention for the Protection of Human Rights and Fundamental Freedoms
DeShaney et al. v. Winnebago County Department (1989) 489 U.S. 189
Fredman, Sarah. (2006) ‘Human Rights Transformed: Positive Duties and Positive Rights’, Public Law 498-520
Komárek, Jan (2005) ‘European Constitutionalism and the European Arrest Warrant: Contrapunctual Principles in Disharmony’ Jean Monnet Working Paper No. 10/05
Rifkin, Jeremy. The European Dream: How Europe’s Vision of the Future Is Quietly Eclipsing the American Dream. New York: Jeremy P. Tarcher/Penguin, 2005. Print.
Photo of the US Supreme Court, April 1999.