Call for Papers: Positive Obligations and Discrimination in the Case Law of the European Court of Human Rights

The workshop aims to explore the potential and limitations of the European Court of Human Rights’ case law on positive obligations and the prohibition of discrimination. Over the past 20 years, the Court has increasingly incorporated positive obligations in its case law on Article 14 and Article 1 Twelfth Protocol of the European Convention on Human Rights (ECHR). Such positive obligations offer important opportunities for tackling discrimination, including more structural forms of discrimination. However, the Court’s positive obligations doctrine is not without its own pitfalls and complexities, as the standards used to reason about breach of positive obligations have been quite flexible and uncertain, arguably limiting the Court’s ability to formulate effective remedies against discrimination. Proposals for papers should be submitted by 8 November 2025. 

From the perspective of non-discrimination law, positive obligations offer various opportunities for addressing discriminatory practices. Positive obligations can serve to hold States accountable for ensuring effective protection against discrimination by private actors, including hate speech and hate crime or unequal treatment by employers or landlords. Moreover, positive obligations offer a pathway to addressing structural causes of discrimination, whether by private or state actors, through preventive measures and positive action. However, an argument that a State Party to the ECHR should be found responsible for omissions demands engagement with complicated questions, such as the causation between the omission and the harm and the possibility by the State to foresee the harm. In the absence of foreseeability, it is not justifiable to find the State responsible under the Convention.

Aim of the workshop

While legal scholars have analysed both the Court’s approach to positive obligations and its efforts to address discrimination, the intersection between these two fields has thus far received little attention. The proposed workshop aims to fill this gap by asking: how does the Court’s doctrine on positive obligations play out in the specific field of discrimination law, and how is protection against discrimination under the ECHR influenced by the development of positive obligations? How can the ECtHR apply positive obligations doctrine to bolster protection against (structural) discrimination, without overstepping the boundaries of its judicial role?

Submission guidelines

For more information and questions/topics to be addressed, see the Call for papers: 

Call for Papers