Edited by Robert Kolb and Gloria Gaggioli
Chapter 9: Positive obligations in human rights law during armed conflicts
Civil and political rights were originally conceived to protect individuals against the abusive exercise of state authority by their own government during times of peace. Hence, in contrast to economic, social and cultural rights, civil and political rights were perceived to be negative in nature, merely requiring states to abstain from interfering with individuals’ rights in times of peace. Both premises proved to be erroneous. The application of human rights law during times of armed conflicts is nowadays widely accepted, although the modalities of the interplay between human rights law and international humanitarian law remain subject to controversy. This development easily fits with texts of the various human rights treaties that do not exclude their application during times of armed conflict and indeed provide for the possibility to derogate during a ‘public emergency threatening the life of the nation’, which can include situations of armed conflict. In contrast, the texts of the general human rights treaties on civil and political rights reflect their perceived negative nature. With the exception of a few explicit positive obligations, the majority of civil and political rights are framed in terms of prohibitions and a duty to respect. Nonetheless, the various human rights bodies overseeing the implementation of their respective treaties implied so-called positive obligations: in order to secure the effective enjoyment of civil and political rights, states are required ‘not only to refrain from an active infringement by its representatives of the rights in question, but also to take appropriate steps to provide protection
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