Positive obligations in the jurisprudence of the Inter-American Court of Human Rights

Th e present article examines the concept of positive obligations in the case law of the Inter-American Court of Human Rights (the Court). From its fi rst contentious case of Velasquez-Rodriguez v. Honduras on, the Court has clearly rejected the classical negativistic position that human rights only give rise to negative obligations to refrain from acting in such a way that violates human rights. Instead the Court has interpreted the American Convention on Human Rights (ACHR) as also giving rise to positive obligations that require actions by the state to actively protect against human rights violations. Based on Articles 1(1) and 2 ACHR in conjunction with specifi c ACHR rights, the Court has recognised a wide array of positive obligations, including obligations to prevent, investigate, punish and provide reparations for human rights violations, as well as obligations to fulfi l human rights (in particular the right to a ‘dignifi ed’ life) and to provide substantive equality. Th e paper argues that the Court’s positive obligations case law clearly illustrates that the Court is acting at the forefront of developments in international human rights law. Moreover, it is argued that if the Court pursues the Drittwirkung approach proposed in its Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants, the ACHR has the potential of “constitutionalising” nearly all dimensions of human conduct. * Laurens Lavrysen is a Ph.D. Researcher at the Human Rights Centre of Ghent University. He works on a Ph.D. on Positive Obligations under the European Convention on Human Rights. His research is funded by the Research Foundation Flanders (FWO) and takes place within the framework of the European Research Council funded project “Strengthening the European Court of Human Rights: More Accountability through Better Legal Reasoning”. . Positive Obligations in the Jurisprudence of the Inter-American Court of Human Rights Intersentia 95