Positive obligations in human rights law : the disabilities paradigm shift

Abstract

In light of the doctrinal innovations of the latest thematic treaty, the United Nations Convention on the Rights of Persons with Disabilities (CRPD), the present thesis revisits the concept of positive obligations in human rights law. Having as a main point of reference the vision of the human being upon which human rights law is based, the thesis suggests a new approach towards conceptualising and analysing positive obligations, namely in terms of human interactions. Under this revised schema, positive obligations ought to be defined as calls for assistance to enable the individual to reach a minimum threshold of both material welfare and sociability. In addition, upon assuming its protective duty the State ought to ensure that in delivering its services it also forges a relationship with the recipient that reflects its caring role. The thesis grounds this revised understanding of positive obligations in the evolution of the notion of autonomy within human rights law. It argues that human rights law has gradually shifted away from the vision of the isolated and independent individual that characterised early human rights instruments and towards a more truthful conception of the human person as a needful and sociable person, a process that the CRPD epitomises. While this change has primarily taken place through thematic treaties, the present thesis argues that the most basic characteristics of this revised notion of selfhood — dependence and relatedness — affect us all and ought to be integrated within our mainstream human rights framework. The thesis explores the analytical and practical implications of this argument by drawing from the human rights jurisprudence on positive obligations, which it will revisit on the basis of its own model.