Khrystova H. The doctrine of the state positive obligations in the field of human rights.

The dissertation is devoted to elaboration of holistic doctrine of a state's human rights positive obligations in the context of peacetime and public emergency based on principles and approaches of European human rights law, as well as defining the ways of its introduction to domestic legal order. Based on modern research methodology the types and peculiarities of a state's human rights obligations are defined; national legal framework for implementation of such obligations is assessed as well as conditions for exercising judicial control over their application with a special focus on constitutional jurisprudence are indicated. It’s stated that the UN human rights treaties monitoring bodies which serve as the most authoritative source of interpretation of human rights provisions consider that each state has a duty to respect, to protect and to fulfil (implement) human rights. The “obligation to respect” requires the state’s organs and agents not to commit violations themselves; the “obligation to protect” requires the state to protect the owners of rights against interference by third parties and to punish the perpetrators; the “obligation to implement” calls for specific positive measures, including legislative, judicial, administrative or educative measures, to give full realisation and full effect to the right. European human rights protection system has opted for a simpler, two-pronged approach, dividing states’ obligations into two categories: negative obligations and positive obligations. While the negative obligations regarding human rights involve not interfering with their enjoyment, the prime characteristic of positive obligations is that they in practice require national authorities to take the necessary measures to safeguard a right, more precisely, to adopt reasonable and suitable measures to protect the rights of the individual. A comprehensive analysis of the scope and the general and detailed content of a state’s positive duties concerning particular human rights and fundamental freedoms is presented. It covers well-established case law of the European Court of Human Rights as a result of dynamic and evolutionary interpretation of the European Convention on Human Rights and the corresponding European standards of such obligations which are to be applied by the courts of Ukraine as the source of law. The findings of the study allow to clarify the limits and key basics of the positive obligations that reveal their essence and distinctive nature as well as their types and specific disjunctive structure in the view of the proportionality test and the margin of appreciation doctrine. The issue of applicability of human rights law in situations of armed conflict and occupation as well as its relationship and interaction with international humanitarian law is assessed considering the legal grounds and requirements to lawful derogations and conditions of extraterritorial effect of human right obligations. The scope and nature of a state positive obligations in situations of armed conflict and effects of hostilities as well as temporarily loss of control over part of its territory are described. It’s proven that nowadays universal and European approaches to the concept of human rights obligations of a state as well as the standards of its implementation in the peacetime and in time of war and other public emergency threatening the life of the nation become interdependent and interrelated. Such tendency promotes better implementation of such obligations on domestic level. The states shall guarantee human rights within their national legal order in accordance with their international obligations, although they have certain margin of appreciation in choosing the relevant means and ways of actions. The results of the study should be considered in course of development of national strategies and plans in the field of human rights and further integration of the positive obligations concept into the constitutional doctrine of Ukraine.