Reviving the Distinction between Positive and Negative Human Rights

Abstract

Increasingly firm rejections of the distinction between positive and negative human rights as incoherent have created a gap between theory and practice, as well as tensions within legal doctrinal and philosophical literature. This article argues that the distinction can be preserved by means of a structural account of the interaction of duties within human rights, anchored in case law on the right to freedom of assembly in Article 11, the right to free elections in Article 3 of Protocol 1, and the right to security as enshrined in Articles 2, 3, 5, and 8 of the European Convention on Human Rights.