Martzoukou, V; (2015) Claims to Resources and Positive Obligations under the European Convention on Human Rights. Doctoral thesis , UCL (University College London).

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Abstract

This thesis investigates the question of what claims to resources and positive obligations are inherent in an effective respect for the rights protected by the ECHR. I advance my thesis first by way of a negative argument about where we cannot look for answers: in flawed categorizations and distinctions between different types of rights and duties and in formalistic or conventional interpretations of the ECHR. Instead, I treat this as an interpretive question that invites substantive moral arguments about what the content and extent of such claims may be in light of the principles and values underlying the Convention. I highlight the significant progress but also the inconsistency and uncertainty in the case law of the ECtHR and offer examples that point to the need for a coherent set of principles by which to determine the content and fair scope of positive obligations and claims to resources. I investigate three different conceptions of the value of liberty as the core value underlying the ECHR. I consider the problems in employing the theories of I. Berlin and J. Raz as the basis for an account of rights and positive obligations. In contrast to these, I develop an interpretation of Ronald Dworkin’s integrated conception of the values of liberty and equality, by which his two principles of dignity and the abstract right to equal concern and respect may give rise to rights as fair shares in a just distribution of the available resources. The idea of proportionality, I suggest, so prevalent in human rights theory and practice, cannot answer the question of what is a fair share but points to the central problem of when can individuals challenge a distribution of resources or opportunities as disproportionate, unreasonable or unfair. Besides, I highlight the significant flaws of minimum core and capabilities theories as the basis for construing the content of rights and claims to resources and positive obligations. As a more attractive alternative, I closely examine Dworkin's theory of equality of resources and defend an interpretation of his hypothetical insurance device as a safety net strategy for determining the content of claims to resources and positive obligations under the ECHR.

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