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Positive and negative obligations through the prism of the ECHR


Author: Poalelungi Mihai
Degree:doctor habilitat of law
Speciality: 12.00.10 - International Public Law
Year:2016
Scientific consultant: Oleg Balan
doctor habilitat, professor, Institute of History of the ASM
Institution: Free International University of Moldova

Status

The thesis was presented on the 22 December, 2015
Approved by NCAA on the 25 February, 2016

Abstract

Adobe PDF document0.73 Mb / in romanian

Thesis

CZU 341.231.14 (043.3)

Adobe PDF document 2.52 Mb / in romanian
324 pages


Keywords

European Convention on Human Rights, European Court of Human Rights, positive obligation, negative obligation, jurisdiction, responsibility of states, extraterritoriality

Summary

Dissertation structure: introduction, 6 chapters, general conclusions and recommendations, bibliography which includes 473 sources, annexes, basic text of 277 pages. The results of the research work are exposed in scientific articles and methodic and didactic works.

Study domain. The paper substantiates a complex study in international public law, international law of human rights and ECHR law.

Goal and objective of the thesis. The main purpose is to fundament the institution of positive and negative obligations of the state through the prism of the European Convention on Human Rights. The specific objectives were aimed to establish the foundations of the general obligation to protect human rights and fundamental freedoms, formulate the conditions of realization of positive and negative obligations by research of jurisdiction dimension of states-parties to the ECHR, define the concept, elements and features of extraterritorial obligations, study of the peculiarities of positive and negative obligations under concrete articles of the European Convention.

Scientific novelty and originality. Scientific novelty consists of identification of a new institution in international law of human rights – institution of positive and negative obligations put upon states according to the European Convention on Human Rights, with formulation and analysis of the main categories of obligations derived from the relevant case law developed by the European Court in its activity of the conventional clauses interpretation and supervision of the human rights and freedoms respect by the signatory parties.

Settlement of the applied scientific problem. Next to theoretical and scientific dimension of the problematic to identify positive and negative obligations put upon state, including extraterritorial obligations, the states meet real difficulties linked to adoption of the most appropriate measures in domestic legal order to avoid possible convictions by the European forum. So solutions of applicative value proposed in recommendations refer to amendments of domestic legal order to comply with the spirit of obligations which result from the corresponding respect of the European Convention.

The main new results for the science and practice. Such an approach contributes to the development of a genuine scientific theory of positive and negative obligations of states according to an international treaty. For the first time in domestic legal doctrine there are analyzed concepts of extraterritorial obligations, derived from the general or effective control on a foreign territory and the criterion of state-agent when establishing the responsibility of a state for acts committed outside its territories.

Theoretical significance. The results and conclusions that reflect the evolved theoretical solutions, serve as a platform for the reconsideration of ECHR law system.

Practical significance of the work. The study aims in particular career lawyers specializing in the field of ECHR and representatives of the judiciary, including international magistrates. Also, this work may be of interest to students and postgraduate students specializing in international law and international human rights law.

Implementation of scientific results. The research results, conclusions and recommendations finalized during the study, were expressed in the texts of scientific articles in journals and also discussed and evaluated at conferences of national and international profile.